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

                                         1422

                              2013-2014 Regular Sessions

                                   I N  S E N A T E

                                      (PREFILED)

                                    January 9, 2013
                                      ___________

       Introduced  by  Sen.  DIAZ  --  read twice and ordered printed, and when
         printed to be committed to the Committee on Codes

       AN ACT to amend the penal law, in relation to increasing the penalty for
         the possession, use, or sale of certain firearms and  ammunition,  the
         definition  of assault weapon, and to repeal subdivision 22 of section
         265.00 of the penal law relating to the definition of an assault weap-
         on

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

    1    Section  1.  Subdivision  22  of  section  265.00  of the penal law is
    2  REPEALED and a new subdivision 22 is added to read as follows:
    3    22. "ASSAULT WEAPON" MEANS ANY:
    4    (A) SEMI-AUTOMATIC OR PUMP-ACTION  RIFLE  THAT  HAS  THE  CAPACITY  TO
    5  ACCEPT A DETACHABLE MAGAZINE AND HAS ONE OR MORE OF THE FOLLOWING:
    6    (I) A PISTOL GRIP;
    7    (II)  A  SECOND  HANDGRIP OR A PROTRUDING GRIP THAT CAN BE HELD BY THE
    8  NON-TRIGGER HAND;
    9    (III) A FOLDING OR TELESCOPING STOCK;
   10    (IV) A SHROUD ATTACHED TO THE BARREL, OR THAT PARTIALLY OR  COMPLETELY
   11  ENCIRCLES  THE  BARREL, ALLOWING THE BEARER TO HOLD THE FIREARM WITH THE
   12  NON-TRIGGER HAND WITHOUT  BEING  BURNED,  BUT  EXCLUDING  A  SLIDE  THAT
   13  ENCLOSES THE BARREL; OR
   14    (V) A MUZZLE BRAKE OR MUZZLE COMPENSATOR;
   15    (B)  SEMI-AUTOMATIC  PISTOL,  OR  ANY SEMI-AUTOMATIC, CENTERFIRE RIFLE
   16  WITH A FIXED MAGAZINE, THAT HAS THE CAPACITY TO  ACCEPT  MORE  THAN  TEN
   17  ROUNDS OF AMMUNITION;
   18    (C) SEMI-AUTOMATIC PISTOL THAT HAS THE CAPACITY TO ACCEPT A DETACHABLE
   19  MAGAZINE AND HAS ONE OR MORE OF THE FOLLOWING:
   20    (I)  A  SECOND  HANDGRIP  OR A PROTRUDING GRIP THAT CAN BE HELD BY THE
   21  NON-TRIGGER HAND;

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD05841-02-3

       S. 1422                             2

    1    (II) A FOLDING OR TELESCOPING STOCK;
    2    (III) A SHROUD ATTACHED TO THE BARREL, OR THAT PARTIALLY OR COMPLETELY
    3  ENCIRCLES  THE  BARREL, ALLOWING THE BEARER TO HOLD THE FIREARM WITH THE
    4  NON-TRIGGER HAND WITHOUT  BEING  BURNED,  BUT  EXCLUDING  A  SLIDE  THAT
    5  ENCLOSES THE BARREL;
    6    (IV) A MUZZLE BRAKE OR MUZZLE COMPENSATOR; OR
    7    (V)  THE  CAPACITY  TO  ACCEPT  A  DETACHABLE MAGAZINE AT ANY LOCATION
    8  OUTSIDE OF THE PISTOL GRIP;
    9    (D) SEMI-AUTOMATIC SHOTGUN THAT HAS ONE OR MORE OF THE FOLLOWING:
   10    (I) A PISTOL GRIP OR A VERTICAL HANDGRIP;
   11    (II) A FOLDING OR TELESCOPING STOCK;
   12    (III) A FIXED MAGAZINE CAPACITY IN EXCESS OF FIVE ROUNDS; OR
   13    (IV)  AN ABILITY TO ACCEPT A DETACHABLE MAGAZINE;
   14    (E) SHOTGUN WITH A REVOLVING CYLINDER;
   15    (F) GRENADE LAUNCHER;
   16    (G) CONVERSION KIT, PART, OR  COMBINATION  OR  PARTS,  FROM  WHICH  AN
   17  ASSAULT  WEAPON CAN BE ASSEMBLED IF THOSE PARTS ARE IN THE POSSESSION OR
   18  UNDER THE CONTROL OF THE SAME PERSON; OR
   19    (H) MODIFICATIONS OF SUCH FEATURES, OR OTHER FEATURES,  DETERMINED  BY
   20  RULES  AND  REGULATIONS  OF  THE  SUPERINTENDENT  OF  STATE POLICE TO BE
   21  PARTICULARLY SUITABLE FOR MILITARY AND NOT SPORTING PURPOSES.  IN  ADDI-
   22  TION,  THE  SUPERINTENDENT  OF  STATE  POLICE  SHALL, BY RULES AND REGU-
   23  LATIONS, DESIGNATE SPECIFIC SEMIAUTOMATIC CENTERFIRE OR  RIMFIRE  RIFLES
   24  OR  SEMIAUTOMATIC SHOTGUNS, IDENTIFIED BY MAKE, MODEL AND MANUFACTURER'S
   25  NAME, TO BE WITHIN THE DEFINITION OF ASSAULT WEAPON, IF THE  SUPERINTEN-
   26  DENT OF STATE POLICE DETERMINES THAT SUCH WEAPONS ARE PARTICULARLY SUIT-
   27  ABLE  FOR MILITARY AND NOT SPORTING PURPOSES. A LIST OF ASSAULT WEAPONS,
   28  AS DETERMINED BY THE SUPERINTENDENT  OF  STATE  POLICE,  SHALL  BE  MADE
   29  AVAILABLE ON A REGULAR BASIS TO THE GENERAL PUBLIC.
   30    PROVIDED, HOWEVER, THAT SUCH TERM DOES NOT INCLUDE ANY WEAPON THAT HAS
   31  BEEN RENDERED PERMANENTLY INOPERABLE.
   32    S  2.  Section  265.00 of the penal law is amended by adding three new
   33  subdivisions 24, 25 and 26 to read as follows:
   34    24. "DETACHABLE MAGAZINE" MEANS ANY  AMMUNITION  FEEDING  DEVICE,  THE
   35  FUNCTION  OF  WHICH IS TO DELIVER ONE OR MORE AMMUNITION CARTRIDGES INTO
   36  THE FIRING CHAMBER, WHICH CAN BE REMOVED FROM THE  FIREARM  WITHOUT  THE
   37  USE OF ANY TOOL, INCLUDING A BULLET OR AMMUNITION CARTRIDGE.
   38    25.  "MUZZLE  BRAKE" MEANS A DEVICE ATTACHED TO THE MUZZLE OF A WEAPON
   39  THAT UTILIZES ESCAPING GAS TO REDUCE RECOIL.
   40    26. "MUZZLE COMPENSATOR" MEANS A DEVICE ATTACHED TO THE  MUZZLE  OF  A
   41  WEAPON THAT UTILIZES ESCAPING GAS TO CONTROL MUZZLE MOVEMENT.
   42    S 3. Section 265.20 of the penal law is amended by adding a new subdi-
   43  vision e to read as follows:
   44    E.  POSSESSION  OF  AN ASSAULT WEAPON ON PROPERTY OWNED OR IMMEDIATELY
   45  CONTROLLED BY THE PERSON,  OR  WHILE  ON  THE  PREMISES  OF  A  LICENSED
   46  GUNSMITH FOR THE PURPOSE OF LAWFUL REPAIR, OR WHILE ENGAGED IN THE LEGAL
   47  USE  OF  THE  ASSAULT  WEAPON  AT A DULY LICENSED FIRING RANGE, OR WHILE
   48  TRAVELING TO OR FROM THESE LOCATIONS, BY A PERSON WHO LAWFULLY POSSESSED
   49  SUCH WEAPON PRIOR TO JANUARY FIRST, TWO THOUSAND FOURTEEN AND WHO, PRIOR
   50  TO APRIL FIRST, TWO THOUSAND FOURTEEN:
   51    1. RENDERS THE ASSAULT WEAPON PERMANENTLY INOPERABLE; OR
   52    2. SURRENDERS THE ASSAULT WEAPON TO THE  APPROPRIATE  LAW  ENFORCEMENT
   53  AGENCY  AS PROVIDED FOR IN SUBPARAGRAPH (F) OF PARAGRAPH ONE OF SUBDIVI-
   54  SION A OF THIS SECTION.
   55    S 4. Subdivision 23 of section 265.00 of the penal law,  as  added  by
   56  chapter 189 of the laws of 2000, is amended to read as follows:

       S. 1422                             3

    1    23. "Large capacity ammunition feeding device" means a magazine, belt,
    2  drum, feed strip, or similar device[, manufactured after September thir-
    3  teenth,  nineteen  hundred ninety-four,] that has a capacity of, or that
    4  can be readily restored or converted to accept, more than ten rounds  of
    5  ammunition;  provided,  however,  that  such  term  does  not include an
    6  attached tubular device designed to accept,  and  capable  of  operating
    7  only with, .22 caliber rimfire ammunition.
    8    S 5. Section 265.02 of the penal law, as amended by chapter 764 of the
    9  laws of 2005, is amended to read as follows:
   10  S 265.02 Criminal possession of a weapon in the third degree.
   11    A  person  is  guilty  of criminal possession of a weapon in the third
   12  degree when:
   13    (1) Such person commits the crime of criminal possession of  a  weapon
   14  in  the  fourth degree as defined in subdivision one, two, three or five
   15  of section 265.01, and has been previously convicted of any crime; or
   16    (2) Such person possesses any explosive or incendiary bomb, bombshell,
   17  firearm silencer, machine-gun or any other firearm or weapon  simulating
   18  a machine-gun and which is adaptable for such use; or
   19    (3)  Such  person knowingly possesses a machine-gun, firearm, rifle or
   20  shotgun which has  been  defaced  for  the  purpose  of  concealment  or
   21  prevention  of  the detection of a crime or misrepresenting the identity
   22  of such machine-gun, firearm, rifle or shotgun; or
   23    (5) (i) Such person possesses three or more  firearms;  or  (ii)  such
   24  person possesses a firearm and has been previously convicted of a felony
   25  or  a  class A misdemeanor defined in this chapter within the five years
   26  immediately preceding the commission of the offense and such  possession
   27  did not take place in the person's home or place of business; or
   28    (6) Such person knowingly possesses any disguised gun[; or
   29    (7) Such person possesses an assault weapon; or
   30    (8) Such person possesses a large capacity ammunition feeding device].
   31    Criminal possession of a weapon in the third degree is a class D felo-
   32  ny.
   33    S 6. Section 265.04 of the penal law, as amended by chapter 764 of the
   34  laws of 2005, is amended to read as follows:
   35  S 265.04 Criminal possession of a weapon in the first degree.
   36    A  person  is  guilty  of criminal possession of a weapon in the first
   37  degree when such person:
   38    (1) possesses any explosive substance with  intent  to  use  the  same
   39  unlawfully against the person or property of another; or
   40    (2) possesses ten or more firearms; OR
   41    (3) POSSESSES AN ASSAULT WEAPON; OR
   42    (4) POSSESSES A LARGE CAPACITY AMMUNITION FEEDING DEVICE.
   43    Criminal possession of a weapon in the first degree is a class B felo-
   44  ny.
   45    S  7.  The  penal law is amended by adding two new sections 265.45 and
   46  265.46 to read as follows:
   47  S 265.45 UNLAWFUL POSSESSION OF A FIREARM UPON  SCHOOL  GROUNDS  IN  THE
   48             SECOND DEGREE.
   49    IT  SHALL  BE UNLAWFUL FOR ANY PERSON TO KNOWINGLY POSSESS ANY FIREARM
   50  IN OR UPON A BUILDING OR GROUNDS, USED FOR EDUCATIONAL PURPOSES, OF  ANY
   51  SCHOOL, COLLEGE OR UNIVERSITY, WITHOUT THE WRITTEN AUTHORIZATION OF SUCH
   52  EDUCATIONAL INSTITUTION.
   53    UNLAWFUL  POSSESSION  OF  A  WEAPON  UPON SCHOOL GROUNDS IN THE SECOND
   54  DEGREE IS A CLASS C FELONY.
   55  S 265.46 UNLAWFUL POSSESSION OF A FIREARM UPON  SCHOOL  GROUNDS  IN  THE
   56             FIRST DEGREE.

       S. 1422                             4

    1    IT  SHALL  BE  UNLAWFUL FOR ANY PERSON TO KNOWINGLY POSSESS AN ASSAULT
    2  WEAPON, LARGE CAPACITY AMMUNITION FEEDING DEVICE OR DETACHABLE  MAGAZINE
    3  IN  OR UPON A BUILDING OR GROUNDS, USED FOR EDUCATIONAL PURPOSES, OF ANY
    4  SCHOOL, COLLEGE OR UNIVERSITY, WITHOUT THE WRITTEN AUTHORIZATION OF SUCH
    5  EDUCATIONAL INSTITUTION.
    6    UNLAWFUL  POSSESSION  OF  A  WEAPON  UPON  SCHOOL GROUNDS IN THE FIRST
    7  DEGREE IS A CLASS B FELONY.
    8    S 8. The closing paragraph of section 265.08  of  the  penal  law,  as
    9  added by chapter 233 of the laws of 1980, is amended to read as follows:
   10    Criminal  use of a firearm in the second degree is a class [C] B felo-
   11  ny.
   12    S 9. The closing paragraph of  subdivision  1  and  subdivision  2  of
   13  section  265.09 of the penal law, the closing paragraph of subdivision 1
   14  as amended and subdivision 2 as added by chapter  650  of  the  laws  of
   15  1996, are amended to read as follows:
   16    Criminal use of a firearm in the first degree is a class [B] A felony.
   17    (2)  Sentencing.  Notwithstanding  any  other  provision of law to the
   18  contrary, when a person is convicted of criminal use of a firearm in the
   19  first degree as defined in subdivision one of this  section,  the  court
   20  shall  impose  an additional consecutive sentence [of five years] to the
   21  minimum term of an indeterminate  sentence  imposed  on  the  underlying
   22  class  B violent felony offense where the person convicted of such crime
   23  displays a loaded weapon from which a shot, readily capable of producing
   24  death or other serious injury may be discharged, in furtherance  of  the
   25  commission  of  such  crime,  provided,  however,  that  such additional
   26  sentence shall not be imposed if the court, having regard to the  nature
   27  and  circumstances  of the crime and to the history and character of the
   28  defendant, finds on the record that such additional consecutive sentence
   29  would be unduly harsh and that  not  imposing  such  sentence  would  be
   30  consistent  with  the public safety and would not deprecate the serious-
   31  ness of the crime.  Notwithstanding any other provision of  law  to  the
   32  contrary,  the  aggregate  of  the  [five year] consecutive term imposed
   33  pursuant to this subdivision and the minimum term of  the  indeterminate
   34  sentence  imposed on the underlying class B violent felony shall consti-
   35  tute the new aggregate  minimum  term  of  imprisonment,  and  a  person
   36  subject  to  such  term  shall be required to serve the entire aggregate
   37  minimum term and shall not be eligible for release on parole  or  condi-
   38  tional  release during such term. This subdivision shall not apply where
   39  the defendant's criminal liability for displaying a loaded  weapon  from
   40  which a shot, readily capable of producing death or other serious injury
   41  may be discharged, in furtherance of the commission of crime is based on
   42  the conduct of another pursuant to section 20.00 of the penal law.
   43    S  10.  The  closing  paragraph of section 265.11 of the penal law, as
   44  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
   45  follows:
   46    Criminal  sale of a firearm in the third degree is a class [D] C felo-
   47  ny.
   48    S 11. The closing paragraph of section 265.12 of  the  penal  law,  as
   49  amended  by  chapter  764  of  the  laws  of 2005, is amended to read as
   50  follows:
   51    Criminal sale of a firearm in the second degree is a class [C] B felo-
   52  ny.
   53    S 12. The closing paragraph of section 265.13 of  the  penal  law,  as
   54  amended  by  chapter  764  of  the  laws  of 2005, is amended to read as
   55  follows:

       S. 1422                             5

    1    Criminal sale of a firearm in the first degree is a class [B] A  felo-
    2  ny.
    3    S  13.  Severability.  If any provision or term of this act is for any
    4  reason declared unconstitutional or invalid or ineffective by any  court
    5  of  competent  jurisdiction, such decision shall not affect the validity
    6  or the effectiveness of the remaining portions of this act or  any  part
    7  thereof.
    8    S 14. This act shall take effect immediately.