A3292A-2011 Actions

• Apr 26, 2012: amended on third reading 3292b
• Apr 19, 2012: advanced to third reading cal.451
• Apr 18, 2012: reported
• Jan 4, 2012: referred to codes
• Feb 28, 2011: print number 3292a
• Feb 28, 2011: amend and recommit to codes
• Jan 24, 2011: referred to codes

A3292A-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 3292--A
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 January 24, 2011
 
 Introduced  by  M.  of  A.  WEISENBERG,  PAULIN,  RAMOS,  LIFTON, CLARK,
 V. LOPEZ, TITUS, KAVANAGH, WRIGHT, SCHIMEL, CASTRO,  BARRON,  LANCMAN,
 MILLMAN,  DINOWITZ,  ROBINSON,  ROSENTHAL, MAYERSOHN, COLTON -- Multi
 Sponsored by -- M. of A.  BOYLAND, BRENNAN, COOK, ENGLEBRIGHT,  GALEF,
 GANTT,   GOTTFRIED,   HEASTIE,   JACOBS,   MAISEL,  McENENY,  PHEFFER,
 P. RIVERA, SCARBOROUGH, TOWNS -- read once and referred to the Commit
 tee on Codes -- committee discharged, bill amended, ordered  reprinted
 as amended and recommitted to said committee
 AN  ACT  to amend the penal law, the general business law and the educa
 tion law, in relation to criminally negligent storage of a weapon  and
 weapons safety programs for children
 

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

 

Section 1. Short title; construction. 1. This act shall be  known  and
 may be cited as the "children's weapon accident prevention act."
 2.  The  provisions  of  this act shall not be construed to preempt or
 supersede any local law the provisions of which are no less stringent or
 restrictive than the provisions of this act.
 

S 2. Legislative findings and intent. The  legislature  finds  that  a
 tragically  large  number  of  children have been accidentally killed or
 seriously injured by negligently stored weapons;  that  placing  weapons
 within  reach  or  easy  access of children is irresponsible, encourages
 such accidents, and should be prohibited, and that legislative action is
 necessary to protect the safety of our children.
 

S 3.

Section 265.00 of the penal law is amended  by  adding  five  new
 subdivisions 24, 25, 26, 27 and 28 to read as follows:

 24.  "WEAPON"  MEANS  A  "RIFLE", "SHOTGUN", OR "FIREARM" AS OTHERWISE
 DEFINED IN SUBDIVISION THREE OF THIS SECTION.
 25. "LOCKED BOX" MEANS A SAFE, CASE OR CONTAINER WHICH,  WHEN  LOCKED,
 IS  INCAPABLE  OF  BEING  OPENED  WITHOUT THE KEY, COMBINATION, OR OTHER
 UNLOCKING MECHANISM AND IS RESISTANT TO  TAMPERING  BY  AN  UNAUTHORIZED
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD03875-02-1
 
       A. 3292--A                          2
 PERSON  ATTEMPTING  TO  OBTAIN ACCESS TO AND POSSESSION OF THE WEAPON OR
 AMMUNITION CONTAINED THEREIN. THE DIVISION OF STATE POLICE SHALL DEVELOP
 AND PROMULGATE RULES AND REGULATIONS SETTING FORTH THE SPECIFIC  DEVICES
 OR  THE  MINIMUM  STANDARDS  AND  CRITERIA  THEREFOR WHICH CONSTITUTE AN
 EFFECTIVE LOCKED BOX.
 26. "GUN LOCKING DEVICE" MEANS AN  INTEGRATED  DESIGN  FEATURE  OR  AN
 ATTACHABLE  ACCESSORY THAT IS RESISTANT TO TAMPERING AND IS EFFECTIVE IN
 PREVENTING THE DISCHARGE OF A WEAPON BY  A  PERSON  WHO  DOES  NOT  HAVE
 ACCESS  TO THE KEY, COMBINATION OR OTHER MECHANISM USED TO DISENGAGE THE
 DEVICE.
 27. "LOADED RIFLE" MEANS ANY RIFLE LOADED WITH AMMUNITION OR ANY RIFLE
 WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A QUANTITY OF
 AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH RIFLE.
 28. "LOADED SHOTGUN" MEANS ANY SHOTGUN LOADED WITH AMMUNITION  OR  ANY
 SHOTGUN  WHICH  IS  POSSESSED  BY ONE WHO, AT THE SAME TIME, POSSESSES A
 QUANTITY OF AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH SHOTGUN.
 

S 4. The penal law is amended  by  adding  six  new  sections  265.45,
 265.50, 265.55, 265.60, 265.65 and 265.70 to read as follows:

 

S 265.45 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE.
 A  PERSON  IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE SECOND
 DEGREE WHEN HE OR SHE STORES OR OTHERWISE LEAVES A WEAPON OUT OF HIS  OR
 HER IMMEDIATE POSSESSION OR CONTROL WITHOUT HAVING FIRST SECURELY LOCKED
 SUCH  WEAPON  IN  AN  APPROPRIATE LOCKED BOX OR RENDERED IT INCAPABLE OF
 BEING FIRED BY THE USE OF A GUN LOCKING DEVICE APPROPRIATE TO THAT WEAP
 ON.
 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE IS A VIOLATION.
 

S 265.50 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE.
 A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY  IN  THE  FIRST
 DEGREE  WHEN  HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON
 SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE
 AND HAS BEEN PREVIOUSLY CONVICTED OF THE OFFENSE OF FAILURE TO  STORE  A
 WEAPON  SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS
 ARTICLE WITHIN THE PRECEDING FIVE YEARS.
 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST  DEGREE  IS  A  CLASS  B
 MISDEMEANOR.
 

S 265.55 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY.
 A PERSON IS GUILTY OF AGGRAVATED FAILURE TO STORE A WEAPON SAFELY WHEN
 HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON SAFELY IN THE
 SECOND  DEGREE  AS  DEFINED  IN  SECTION 265.45 OF THIS ARTICLE AND SUCH
 WEAPON IS REMOVED FROM THE PREMISES  OR  DISCHARGED  BY  ANOTHER  PERSON
 UNDER THE AGE OF EIGHTEEN.
 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY IS A CLASS A MISDEMEANOR.
 

S 265.60 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE.
 1.  A  PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN
 THE SECOND DEGREE WHEN WITH CRIMINAL NEGLIGENCE, HE  OR  SHE  STORES  OR
 LEAVES  A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION
 WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE  AGE  OF  EIGHTEEN
 AND  SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN,
 WHICH CAUSES SERIOUS PHYSICAL INJURY TO SUCH PERSON  UNDER  THE  AGE  OF
 EIGHTEEN OR ANY OTHER PERSON.
 2.  IN  ANY  PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE
 DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL  REASONABLE  EFFORTS  TO
 RETRIEVE  OR  OTHERWISE  REGAIN  POSSESSION  OF SUCH WEAPON PRIOR TO ITS
 DISCHARGE.
 3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:

 
       A. 3292--A                          3
 (A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH  WEAPON
 AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
 (B)  SUCH  WEAPON  IS  STORED  IN A SECURELY LOCKED BOX WHICH PREVENTS
 ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED  TO  DISCHARGE
 SUCH  WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS
 ACCESS TO SUCH AMMUNITION;
 (C) SUCH WEAPON IS SECURED WITH A GUN LOCKING  DEVICE  WHICH  PREVENTS
 THE WEAPON FROM DISCHARGING;
 (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
 OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU
 ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW;
 (E)  SUCH  WEAPON  IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER
 WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR
 (F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE.
 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE  SECOND  DEGREE  IS  A
 CLASS E FELONY.
 

S 265.65 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE.
 1.  A  PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN
 THE FIRST DEGREE WHEN WITH CRIMINAL NEGLIGENCE,  HE  OR  SHE  STORES  OR
 LEAVES  A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION
 WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE  AGE  OF  EIGHTEEN
 AND  SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN,
 WHICH CAUSES THE DEATH OF SUCH PERSON UNDER THE AGE OF EIGHTEEN  OR  ANY
 OTHER PERSON.
 2.  IN  ANY  PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE
 DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL  REASONABLE  EFFORTS  TO
 RETRIEVE  OR  OTHERWISE  REGAIN  POSSESSION  OF SUCH WEAPON PRIOR TO ITS
 DISCHARGE.
 3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:

 (A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH  WEAPON
 AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
 (B)  SUCH  WEAPON  IS  STORED  IN A SECURELY LOCKED BOX WHICH PREVENTS
 ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED  TO  DISCHARGE
 SUCH  WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS
 ACCESS TO THE WEAPON;
 (C) THE WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS THE
 WEAPON FROM DISCHARGING;
 (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
 OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU
 ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW;
 (E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF  A  POLICE  OFFICER
 WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR
 (F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE.
 CRIMINALLY  NEGLIGENT  STORAGE  OF  A  WEAPON IN THE FIRST DEGREE IS A
 CLASS D FELONY.
 

S 265.70 CRIMINALLY NEGLIGENT STORAGE OF  A  WEAPON  IN  THE  FIRST  AND
 SECOND DEGREE; APPLICATION.
 IF  A PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65 OF
 THIS ARTICLE IS THE PARENT OR GUARDIAN OF A CHILD WHO IS INJURED OR  WHO
 DIES  AS  THE  RESULT  OF  SUCH  VIOLATION,  THE DISTRICT ATTORNEY SHALL
 CONSIDER, AMONG OTHER FACTORS, THE IMPACT OF THE INJURY OR DEATH ON  THE
 PERSON  WHO  IS  SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65 OF THIS
 ARTICLE WHEN DECIDING WHETHER OR NOT TO PROSECUTE SUCH PERSON  FOR  SUCH
 CRIME.
 
       A. 3292--A                          4
 

S  5.  The  section heading and subdivision 2 of section 396-ee of the
 general business law, as added by chapter 189 of the laws of  2000,  are
 amended to read as follows:

 Sale of certain weapons; locking devices AND LOCKED BOXES therefor.
 (2)  Every  person, firm or corporation engaged in the retail business
 of selling rifles, shotguns or firearms, as such terms  are  defined  in
 section  265.00 of the penal law, shall, in the place where such rifles,
 shotguns or firearms are displayed or transferred to the purchaser, post
 a notice conspicuously stating in bold print that:   "The use of  a  GUN
 locking  device  or  [safety  lock]  A  LOCKED BOX is only one aspect of
 responsible firearm storage.  For increased safety  firearms  should  be
 stored  unloaded  and  locked  in  a location that is both separate from
 their ammunition and inaccessible to children and any other unauthorized
 person. LEAVING RIFLES, SHOTGUNS, AND FIREARMS ACCESSIBLE  TO  A  PERSON
 UNDER EIGHTEEN IS A CRIME IN NEW YORK STATE."
 

S  6. 

Section  305  of  the  education law is amended by adding a new
 subdivision 42 to read as follows:

 42. THE COMMISSIONER SHALL IN COOPERATION WITH THE DIVISION OF  CRIMI
 NAL  JUSTICE  SERVICES  DEVELOP  A  WEAPONS  SAFETY  PROGRAM DESIGNED TO
 PROTECT CHILDREN FROM THE RISK OF GUN-RELATED  DEATH  AND  INJURY.  SUCH
 PROGRAM SHALL BE DESIGNED TO TEACH CHILDREN TO FOLLOW AN EFFECTIVE SAFE
 TY  PROCEDURE  WHEN  THEY  ARE EXPOSED TO A GUN, SHALL SPECIFICALLY WARN
 CHILDREN THAT CONTACT WITH GUNS CAN RESULT IN SERIOUS  INJURY  OR  DEATH
 AND  SHALL  HAVE  BEEN  PROVEN TO BE EFFECTIVE TO PREVENT INJURY THROUGH
 FORMAL EVALUATION BY  OBJECTIVE  PUBLIC  HEALTH  AND  EDUCATION  PROFES
 SIONALS. SUCH PROGRAM MAY BE USED IN PUBLIC AND NONPUBLIC SCHOOLS AT THE
 DISCRETION  OF THE LOCAL SCHOOL BOARD OF EDUCATION OR BOARD OF TRUSTEES,
 WHICHEVER IS APPLICABLE. THE COMMISSIONER  SHALL  SUBMIT  AN  EVALUATION
 REPORT ON THIS PROGRAM TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE
 TEMPORARY  PRESIDENT  OF  THE  SENATE,  THE  CHAIR OF THE ASSEMBLY CODES
 COMMITTEE AND THE CHAIR OF THE SENATE  CODES  COMMITTEE  NO  LATER  THAN
 JANUARY FIRST, TWO THOUSAND FOURTEEN.
 

S  7.  If  any  word, phrase, clause, sentence, paragraph, section, or
 part of this act shall be adjudged by any court of  competent  jurisdic
 tion  to  be invalid, such judgment shall not affect, impair, or invali
 date the remainder thereof, but shall be confined in  its  operation  to
 the words, phrase, clause, sentence, paragraph, section, or part thereof
 directly  involved  in the controversy in which such judgment shall have
 been rendered, provided such judgment does not alter the intent of  this
 legislation.
 

S 8. This act shall take effect on the first of November next succeed
 ing  the  date  on  which it shall have become a law, provided, however,
 that sections three and four of this act shall take effect May 1,  2013;
 provided, further, that section five of this act shall take effect March
 1,  2013  except  that  any  rule or regulation necessary for the timely
 implementation of section five of this act  may  be  promulgated  on  or
 before such date.

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