Provides enhanced sentencing for the offenses of criminal possession of a weapon and criminal sale of a firearm where such offenses occur at the residence of a child under age of fourteen.
Ayes (60): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Huntley, Johnson, Kennedy, Klein, Krueger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
Excused (1): Oppenheimer
TITLE OF BILL: An act to amend the penal law, in relation to enhanced sentencing for criminal possession of a weapon or criminal sale of a firearm, when the crime is committed at the home of a child
PURPOSE: The purpose of this bill is to target criminals who possess and sell firearms in residences that also serve as the home of children under the age of fourteen.
SUMMARY OF PROVISIONS: Section 1. Adds a new section, 265.18, to the Penal Law that provides for an additional sentence when weapons are illegally possessed or firearms are illegally sold in a home that is also the dwelling of a child under the age of fourteen or in the presence of such child.
The bill provides that when a person is convicted of criminal possession of a weapon in the first degree (Penal Law §265.04), second degree (Penal Law §265.03) or third degree (§265.02), and such crime was committed at a place which is the dwelling or residence of a child under age 14, a consecutive sentence of two and a half years is added on to the minimum sentence. If this crime is committed in the presence of a child under age 14, the enhanced consecutive sentence is five years. Any person convicted under these provisions will not be eligible for parole until the minimum sentence and the enhanced sentence is served.
Criminal possession of a weapon in the fourth degree (§265.01) is intentionally excluded because it is a misdemeanor and the purpose of the bill is to target felons.
The enhanced sentencing provisions also apply to the criminal sale of a firearm in the first through third degree (Penal Law §265.14, §265.13, §265.12 and §265.11) and criminal sale of a firearm to a minor (Penal Law §265.16). All of the firearms sales crimes are also felonies.
JUSTIFICATION: The purpose of this bill is to target criminals who possess and sell firearms in residences that also serve as the home of children under the age of fourteen. In many instances, these individuals are also dealing or using drugs in a dwelling that is located in a large apartment building or housing complex. Often, young children either live in or around these dwellings. The activities of these criminals puts not only the children, but all of the law abiding citizens in these communities at grave risk of injury or death.
This Legislation provides a solution that can be immediately implemented. The enhanced sentencing provided in this bill is designed to make the lives of drug dealers and other kinds of gangsters miserable to the point where it is no longer in their best interest to dwell in and terrorize these communities.
LEGISLATIVE HISTORY: S.8418 of 2010, Referred to Rules
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: The first of November next succeeding the date it becomes law.
STATE OF NEW YORK ________________________________________________________________________ 2169--A 2011-2012 Regular Sessions IN SENATE January 18, 2011 ___________Introduced by Sens. GOLDEN, DeFRANCISCO, FUSCHILLO, GRIFFO, HANNON, JOHNSON, LARKIN, LAVALLE, LITTLE, MAZIARZ, O'MARA, RANZENHOFER, SALAND, YOUNG -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- recommitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law, in relation to enhanced sentencing for criminal possession of a weapon or criminal sale of a firearm, when the crime is committed at the home of a child THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The penal law is amended by adding a new section 265.18 to read as follows: S 265.18 ADDITIONAL SENTENCE WHEN CRIMINAL POSSESSION OF A WEAPON OR CRIMINAL SALE OF A FIREARM IS COMMITTED AT THE HOME OF A CHILD. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, WHEN A PERSON IS CONVICTED OF CRIMINAL POSSESSION OF A WEAPON AS DEFINED IN SECTIONS 265.04, 265.03 OR 265.02, OR CRIMINAL SALE OF A FIREARM AS DEFINED IN SECTIONS 265.16, 265.14, 265.13, 265.12, OR 265.11 OF THIS ARTICLE AND THE TRIER OF FACT DETERMINES BEYOND A REASONABLE DOUBT THAT THE CRIME WAS COMMITTED AT ANY DWELLING, MULTIPLE DWELLING OR RESIDENCE WHERE A CHILD UNDER THE AGE OF FOURTEEN YEARS OLD IS DOMICILED, THE COURT SHALL IMPOSE AN ADDITIONAL CONSECUTIVE SENTENCE OF TWO AND ONE-HALF YEARS TO THE MINIMUM TERM OF A SENTENCE IMPOSED ON THE UNDERLY- ING FELONY OFFENSE. IF THE TRIER OF FACT ALSO DETERMINES BEYOND A REASONABLE DOUBT THAT THE CRIME WAS COMMITTED AT SUCH RESIDENCE AND SUCH CHILD OR ANOTHER CHILD UNDER THE AGE OF FOURTEEN YEARS OLD WAS PRESENT AT THE DWELLING, MULTIPLE DWELLING OR RESIDENCE, OR WITHIN THE CURTILAGE OF SUCH, AT THE TIME OF THE COMMISSION OF THE CRIME, THE ADDITIONALEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04287-03-2 S. 2169--A 2
CONSECUTIVE SENTENCE SHALL BE NO LESS THAN FIVE YEARS. HOWEVER, 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 CHARAC- TER OF THE DEFENDANT, FINDS ON THE RECORD THAT SUCH ADDITIONAL CONSEC- UTIVE 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 CONSECUTIVE TERM IMPOSED PURSUANT TO THIS SECTION AND THE MINIMUM TERM OF THE SENTENCE IMPOSED ON THE UNDER- LYING FELONY SHALL CONSTITUTE THE NEW AGGREGATE MINIMUM TERM OF IMPRI- SONMENT, 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. S 2. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.