This bill has been amended

Bill S1422-2013

Increases the penalty for the possession, use, or sale of certain firearms and ammunition and redefines "assault weapon"; repealer

Increases the penalty for the possession, use, or sale of assault weapons and large capacity ammunition feeding devices and certain other weapons and redefines "assault weapon".

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  • Jan 8, 2014: REFERRED TO CODES
  • Jan 9, 2013: REFERRED TO CODES

Memo

BILL NUMBER:S1422

TITLE OF BILL: 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 weapon

PURPOSE OR GENERAL IDEA OF THE BILL: Provides an updated description of assault weapons; closes the loophole regarding the possession of large capacity ammunition devices before September 13, 1994; increases the criminal possession of an assault weapon and large capacity ammunition feeding device from a class D to a class B felony and increases penalties for the use, possession and sale of firearms. Creates the new crime of unlawful possession of a firearm upon school grounds in the first and second degrees.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Repeals the Penal Law, Section 265.00 (22). Adds a new subdivision 22. Provides an updated definition of assault weapons. Specifies the types of semi-automatic weapons and attachments that constitute an assault weapon.

Section 2. Amends the Penal Law, Section 265.00 by adding three new subdivisions, 24, 25 and 26. Adds and defines detachable magazine, muzzle brake and muzzle compensator.

Section 3. Amends the Penal Law, Section 265.20 by adding a new subdivision e. Provides exemptions for an assault weapon on property owned or immediately controlled by the person or while on the premises of a licensed gunsmith, and who prior to April 1, 2014 renders the assault weapon permanently inoperable or who surrenders the assault weapon to the appropriate law enforcement agency,

Section 4. Amends the Penal Law, Section 265.00 (23). Defines "large capacity ammunition feeding device" regardless of when such device was manufactured.

Sections 5 and 6. Amends the Penal Law, Section 265.02 and Section 265.04. Increases possession of an assault weapon and a large capacity ammunition feeding device from a class D felony (Section 265.02) to class B felony (Section 265.04).

Section 7. Amends the Penal Law by adding two new sections, 265.45 and 265.46. Provides that unlawful possession of a firearm upon school grounds in the second degree is a class C felony (265.45), and that unlawful possession of a firearm upon school grounds in the first degree is a class B felony (265.46).

Section 8. Amends the Penal Law, Section 265.08, closing paragraph. Increases the penalty for criminal use of a firearm in the second degree from a class C to a class B felony.

Section 9. Amends the Penal Law, Section 265.09, (1) (2), closing paragraph. Increases the penalty for criminal use of a firearm in the first degree from a class B to a class A felony. Amends the sentencing guidelines to allow judicial discretion in imposing a consecutive sentence.

Section 10. Amend the Penal Law, Section 265.11, closing paragraph. Increases the penalty for criminal sale of a firearm in the third degree from a class D to a class C felony.

Section 11. Amends the Penal law, Section 265.12, closing paragraph. Increases the penalty for criminal sale of a firearm in the second degree from a class C to a class B felony.

Section 12. Amends the Penal Law, Section 265.13, closing paragraph. Increases the penalty for criminal sale for a firearm in the first degree from a Class B to a Class A felony.

Section 13. Severability Clause

Section 14. Effective Date

EXISTING LAW: Current law allows large capacity ammunition feeding devices manufactured before September 13, 1994, makes no provision for the unlawful use of a firearm on school grounds, establishes a class D felony for criminal possession of an assault weapon or large capacity ammunition feeding device, and provides for a consecutive sentence of five years to the minimum term of an indeterminate sentence for criminal use of a firearm in the first degree, which currently is a class B felony. Additionally, the criminal sanctions for other gun-related crimes in current statute are one degree lower than the criminal sanctions proposed in this legislation.

Penal Law, Article 265, Firearms and other Dangerous Weapons, Sections 265.00 -Definitions; 265.20-Exemptions; 265.02-Criminal Possession of a weapon in the third degree; 265.04-Criminal Possession of a weapon in the first degree; 265.08 Criminal use of a firearm in the second degree; 265.09 (2) -Criminal use of a firearm in the first degree, sentencing; 265.11-Criminal sale of a firearm in the third degree; 265.12-Criminal sale of a firearm in the second degree; 265.13-Criminal sale of a firearm in the first degree

JUSTIFICATION: On Monday December 24, 2012, William Spengler, Jr., reported a fire to the local fire department in Webster, NY. Then he waited with three guns, one of which was an assault rifle, for the firefighters to arrive. He killed two and seriously wounded two others. Mr. Spengler was a convicted felon, and as such, was prohibited by law from owning firearms. Somehow, he managed to obtain them anyway. This horrendous incident, the massacre at Sandy Hook Elementary School in Newtown, Connecticut ten days earlier, in which 20 six and seven year-olds and 6 faculty and staff were murdered execution-style, and other mass shootings that have occurred Columbine High School, where 12 students and one teacher were killed and 21 injured, the Clackamas Town Center Mall in Oregon, where 2

people were killed and 1 wounded, the Sikh Temple in Oak Creek, Wisconsin where 6 people were killed and 4 wounded, the Century Movie Theater in Aurora, Colorado, where 12 people were killed and 58 wounded, and in broad daylight, Tucson. Arizona where six people were killed and 11 wounded, including Congresswoman Gabrielle Giffords, who was severely wounded - clearly point to the need to ban assault-style weapons, for stricter gun control laws and increased criminal sanctions.

This legislation: updates and improves the description of an assault weapon; prohibits large capacity ammunition feeding devices regardless of when they were manufactured; increases the criminal sanction for possession of an assault weapon or large capacity ammunition feeder from a D felony to a B felony, increases criminal sanctions for other gun-related crimes by one felony degree, and creates the new crime of unlawful possession of a firearm upon school grounds in the first and second degrees.

PRIOR LEGISLATIVE HISTORY: New Bill

FISCAL IMPLICATIONS: None

EFFECTIVE DATE: Immediately


Text

STATE OF NEW YORK ________________________________________________________________________ 1422 2013-2014 Regular Sessions IN SENATE (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: Section 1. Subdivision 22 of section 265.00 of the penal law is REPEALED and a new subdivision 22 is added to read as follows: 22. "ASSAULT WEAPON" MEANS ANY: (A) SEMI-AUTOMATIC OR PUMP-ACTION RIFLE THAT HAS THE CAPACITY TO ACCEPT A DETACHABLE MAGAZINE AND HAS ONE OR MORE OF THE FOLLOWING: (I) A PISTOL GRIP; (II) A SECOND HANDGRIP OR A PROTRUDING GRIP THAT CAN BE HELD BY THE NON-TRIGGER HAND; (III) A FOLDING OR TELESCOPING STOCK; (IV) A SHROUD ATTACHED TO THE BARREL, OR THAT PARTIALLY OR COMPLETELY ENCIRCLES THE BARREL, ALLOWING THE BEARER TO HOLD THE FIREARM WITH THE NON-TRIGGER HAND WITHOUT BEING BURNED, BUT EXCLUDING A SLIDE THAT ENCLOSES THE BARREL; OR (V) A MUZZLE BRAKE OR MUZZLE COMPENSATOR; (B) SEMI-AUTOMATIC PISTOL, OR ANY SEMI-AUTOMATIC, CENTERFIRE RIFLE WITH A FIXED MAGAZINE, THAT HAS THE CAPACITY TO ACCEPT MORE THAN TEN ROUNDS OF AMMUNITION; (C) SEMI-AUTOMATIC PISTOL THAT HAS THE CAPACITY TO ACCEPT A DETACHABLE MAGAZINE AND HAS ONE OR MORE OF THE FOLLOWING: (I) A SECOND HANDGRIP OR A PROTRUDING GRIP THAT CAN BE HELD BY THE NON-TRIGGER HAND;
(II) A FOLDING OR TELESCOPING STOCK; (III) A SHROUD ATTACHED TO THE BARREL, OR THAT PARTIALLY OR COMPLETELY ENCIRCLES THE BARREL, ALLOWING THE BEARER TO HOLD THE FIREARM WITH THE NON-TRIGGER HAND WITHOUT BEING BURNED, BUT EXCLUDING A SLIDE THAT ENCLOSES THE BARREL; (IV) A MUZZLE BRAKE OR MUZZLE COMPENSATOR; OR (V) THE CAPACITY TO ACCEPT A DETACHABLE MAGAZINE AT ANY LOCATION OUTSIDE OF THE PISTOL GRIP; (D) SEMI-AUTOMATIC SHOTGUN THAT HAS ONE OR MORE OF THE FOLLOWING: (I) A PISTOL GRIP OR A VERTICAL HANDGRIP; (II) A FOLDING OR TELESCOPING STOCK; (III) A FIXED MAGAZINE CAPACITY IN EXCESS OF FIVE ROUNDS; OR (IV) AN ABILITY TO ACCEPT A DETACHABLE MAGAZINE; (E) SHOTGUN WITH A REVOLVING CYLINDER; (F) GRENADE LAUNCHER; (G) CONVERSION KIT, PART, OR COMBINATION OR PARTS, FROM WHICH AN ASSAULT WEAPON CAN BE ASSEMBLED IF THOSE PARTS ARE IN THE POSSESSION OR UNDER THE CONTROL OF THE SAME PERSON; OR (H) MODIFICATIONS OF SUCH FEATURES, OR OTHER FEATURES, DETERMINED BY RULES AND REGULATIONS OF THE SUPERINTENDENT OF STATE POLICE TO BE PARTICULARLY SUITABLE FOR MILITARY AND NOT SPORTING PURPOSES. IN ADDI- TION, THE SUPERINTENDENT OF STATE POLICE SHALL, BY RULES AND REGU- LATIONS, DESIGNATE SPECIFIC SEMIAUTOMATIC CENTERFIRE OR RIMFIRE RIFLES OR SEMIAUTOMATIC SHOTGUNS, IDENTIFIED BY MAKE, MODEL AND MANUFACTURER'S NAME, TO BE WITHIN THE DEFINITION OF ASSAULT WEAPON, IF THE SUPERINTEN- DENT OF STATE POLICE DETERMINES THAT SUCH WEAPONS ARE PARTICULARLY SUIT- ABLE FOR MILITARY AND NOT SPORTING PURPOSES. A LIST OF ASSAULT WEAPONS, AS DETERMINED BY THE SUPERINTENDENT OF STATE POLICE, SHALL BE MADE AVAILABLE ON A REGULAR BASIS TO THE GENERAL PUBLIC. PROVIDED, HOWEVER, THAT SUCH TERM DOES NOT INCLUDE ANY WEAPON THAT HAS BEEN RENDERED PERMANENTLY INOPERABLE. S 2. Section 265.00 of the penal law is amended by adding three new subdivisions 24, 25 and 26 to read as follows: 24. "DETACHABLE MAGAZINE" MEANS ANY AMMUNITION FEEDING DEVICE, THE FUNCTION OF WHICH IS TO DELIVER ONE OR MORE AMMUNITION CARTRIDGES INTO THE FIRING CHAMBER, WHICH CAN BE REMOVED FROM THE FIREARM WITHOUT THE USE OF ANY TOOL, INCLUDING A BULLET OR AMMUNITION CARTRIDGE. 25. "MUZZLE BRAKE" MEANS A DEVICE ATTACHED TO THE MUZZLE OF A WEAPON THAT UTILIZES ESCAPING GAS TO REDUCE RECOIL. 26. "MUZZLE COMPENSATOR" MEANS A DEVICE ATTACHED TO THE MUZZLE OF A WEAPON THAT UTILIZES ESCAPING GAS TO CONTROL MUZZLE MOVEMENT. S 3. Section 265.20 of the penal law is amended by adding a new subdi- vision e to read as follows: E. POSSESSION OF AN ASSAULT WEAPON ON PROPERTY OWNED OR IMMEDIATELY CONTROLLED BY THE PERSON, OR WHILE ON THE PREMISES OF A LICENSED GUNSMITH FOR THE PURPOSE OF LAWFUL REPAIR, OR WHILE ENGAGED IN THE LEGAL USE OF THE ASSAULT WEAPON AT A DULY LICENSED FIRING RANGE, OR WHILE TRAVELING TO OR FROM THESE LOCATIONS, BY A PERSON WHO LAWFULLY POSSESSED SUCH WEAPON PRIOR TO JANUARY FIRST, TWO THOUSAND FOURTEEN AND WHO, PRIOR TO APRIL FIRST, TWO THOUSAND FOURTEEN: 1. RENDERS THE ASSAULT WEAPON PERMANENTLY INOPERABLE; OR 2. SURRENDERS THE ASSAULT WEAPON TO THE APPROPRIATE LAW ENFORCEMENT AGENCY AS PROVIDED FOR IN SUBPARAGRAPH (F) OF PARAGRAPH ONE OF SUBDIVI- SION A OF THIS SECTION. S 4. Subdivision 23 of section 265.00 of the penal law, as added by chapter 189 of the laws of 2000, is amended to read as follows:
23. "Large capacity ammunition feeding device" means a magazine, belt, drum, feed strip, or similar device[, manufactured after September thir- teenth, nineteen hundred ninety-four,] that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition; provided, however, that such term does not include an attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition. S 5. Section 265.02 of the penal law, as amended by chapter 764 of the laws of 2005, is amended to read as follows: S 265.02 Criminal possession of a weapon in the third degree. A person is guilty of criminal possession of a weapon in the third degree when: (1) Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; or (2) Such person possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or (3) Such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun; or (5) (i) Such person possesses three or more firearms; or (ii) such person possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this chapter within the five years immediately preceding the commission of the offense and such possession did not take place in the person's home or place of business; or (6) Such person knowingly possesses any disguised gun[; or (7) Such person possesses an assault weapon; or (8) Such person possesses a large capacity ammunition feeding device]. Criminal possession of a weapon in the third degree is a class D felo- ny. S 6. Section 265.04 of the penal law, as amended by chapter 764 of the laws of 2005, is amended to read as follows: S 265.04 Criminal possession of a weapon in the first degree. A person is guilty of criminal possession of a weapon in the first degree when such person: (1) possesses any explosive substance with intent to use the same unlawfully against the person or property of another; or (2) possesses ten or more firearms; OR (3) POSSESSES AN ASSAULT WEAPON; OR (4) POSSESSES A LARGE CAPACITY AMMUNITION FEEDING DEVICE. Criminal possession of a weapon in the first degree is a class B felo- ny. S 7. The penal law is amended by adding two new sections 265.45 and 265.46 to read as follows: S 265.45 UNLAWFUL POSSESSION OF A FIREARM UPON SCHOOL GROUNDS IN THE SECOND DEGREE. IT SHALL BE UNLAWFUL FOR ANY PERSON TO KNOWINGLY POSSESS ANY FIREARM IN OR UPON A BUILDING OR GROUNDS, USED FOR EDUCATIONAL PURPOSES, OF ANY SCHOOL, COLLEGE OR UNIVERSITY, WITHOUT THE WRITTEN AUTHORIZATION OF SUCH EDUCATIONAL INSTITUTION. UNLAWFUL POSSESSION OF A WEAPON UPON SCHOOL GROUNDS IN THE SECOND DEGREE IS A CLASS C FELONY. S 265.46 UNLAWFUL POSSESSION OF A FIREARM UPON SCHOOL GROUNDS IN THE FIRST DEGREE.
IT SHALL BE UNLAWFUL FOR ANY PERSON TO KNOWINGLY POSSESS AN ASSAULT WEAPON, LARGE CAPACITY AMMUNITION FEEDING DEVICE OR DETACHABLE MAGAZINE IN OR UPON A BUILDING OR GROUNDS, USED FOR EDUCATIONAL PURPOSES, OF ANY SCHOOL, COLLEGE OR UNIVERSITY, WITHOUT THE WRITTEN AUTHORIZATION OF SUCH EDUCATIONAL INSTITUTION. UNLAWFUL POSSESSION OF A WEAPON UPON SCHOOL GROUNDS IN THE FIRST DEGREE IS A CLASS B FELONY. S 8. The closing paragraph of section 265.08 of the penal law, as added by chapter 233 of the laws of 1980, is amended to read as follows: Criminal use of a firearm in the second degree is a class [C] B felo- ny. S 9. The closing paragraph of subdivision 1 and subdivision 2 of section 265.09 of the penal law, the closing paragraph of subdivision 1 as amended and subdivision 2 as added by chapter 650 of the laws of 1996, are amended to read as follows: Criminal use of a firearm in the first degree is a class [B] A 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 minimum term of an indeterminate 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, 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 serious- ness 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 consti- tute 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 condi- tional 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, in furtherance of the commission of crime is based on the conduct of another pursuant to section 20.00 of the penal law. S 10. The closing paragraph of section 265.11 of the penal law, as amended by chapter 764 of the laws of 2005, is amended to read as follows: Criminal sale of a firearm in the third degree is a class [D] C felo- ny. S 11. The closing paragraph of section 265.12 of the penal law, as amended by chapter 764 of the laws of 2005, is amended to read as follows: Criminal sale of a firearm in the second degree is a class [C] B felo- ny. S 12. The closing paragraph of section 265.13 of the penal law, as amended by chapter 764 of the laws of 2005, is amended to read as follows:
Criminal sale of a firearm in the first degree is a class [B] A felo- ny. S 13. Severability. If any provision or term of this act is for any reason declared unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or the effectiveness of the remaining portions of this act or any part thereof. S 14. This act shall take effect immediately.

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