Bill S2919-2013

Relates to the offenses of criminal possession of a weapon in the third and fourth degrees

Increases the penalties for certain criminal possession of a weapon offenses from a misdemeanor to a class D felony.

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  • Jan 8, 2014: REFERRED TO CODES
  • Jan 25, 2013: REFERRED TO CODES

Memo

BILL NUMBER:S2919

TITLE OF BILL: An act to amend the penal law, in relation to criminal possession of a weapon

PURPOSE OR GENERAL IDEA OF BILL: To provide stronger penalties for an individual being found guilty of criminal possession of a weapon.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Section 265.01 of the penal law is amended by removing four subsections (4, 6, 7 and 8) whereby a person can be found guilty of criminal possession of a weapon in the fourth degree, which currently is a class A misdemeanor.

Section 2. Incorporates those same subsections (4,6,7, and 8) which were removed from section 265.01 of the penal law and places them into Section 265.02 of the penal law which deals with criminal possession of a weapon in the third degree, the penalty of which is a class D felony.

Section 2 of the bill also amends section 265.02 of the penal law to state that a person is guilty of criminal possession of a weapon in the third degree if such person possess a firearm and has been previously convicted of a felony regardless if the felony conviction occurred within the preceding five years.

Section 3. Makes technical corrections to paragraph 5 of subdivision a of section 265.20 of the penal law.

Section 4. Effective Date

JUSTIFICATION: In the light of the recent tragedies that have plagued the nation, it is imperative that we enact sensible gun laws.The recently enacted NY SAFE Act will do much to better protect the hard working men and women of this state from senseless gun violence. This legislation furthers that effort by increasing penalties for other various gun related offenses.

Convicted felons are routinely found in possession of various types of firearms, however under current law the offense is only punishable by a class A misdemeanor. This legislation increases that penalty to a class D felony.

Additionally, if a person possesses a firearm and has been previously convicted of a felony, he or she can only then be convicted of a class D felony if the offense occurred within the preceding five years. This five year look back period should be removed and would be consistent with other look back provisions that have been removed pertaining to cases involving domestic violence, child abuse and sex crimes.

There are other provisions of the penal law pertaining to criminal possession of a firearm that need to be strengthened as well. If a Person knowingly possesses a bullet containing an explosive substance designed to detonate on impact, or if a person possesses any armor piercing ammunition with the intent to use it unlawfully, they both only carry the offense of a class A misdemeanor. Increasing the penalty for these offenses to a class D felony is more appropriate.

Finally, under current law if a person has been certified not suitable to possess a rifle or shotgun and refuses to yield possession of such rifle or shotgun upon the demand of a police officer, he or she can only be charged with a class A misdemeanor. This legislation increases it to a class D felony.

Providing harsher penalties for various gun related offenses will not only make our streets safer, but will also provide law enforcement with the tools necessary to better protect the public.

PRIOR LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS: None to the State.

EFFECTIVE DATE: 90th day with provisions.


Text

STATE OF NEW YORK ________________________________________________________________________ 2919 2013-2014 Regular Sessions IN SENATE January 25, 2013 ___________
Introduced by Sen. BRESLIN -- 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 criminal possession of a weapon THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 265.01 of the penal law, as amended by chapter 1 of the laws of 2013, is amended to read as follows: S 265.01 Criminal possession of a weapon in the fourth degree. A person is guilty of criminal possession of a weapon in the fourth degree when: (1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type sling- shot or slungshot, shirken or "Kung Fu star"; or (2) He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another; or (3)[; or (4) He possesses a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm, and has been convicted of a felony or serious offense; or (5)] He possesses any dangerous or deadly weapon and is not a citizen of the United States[; or (6) He is a person who has been certified not suitable to possess a rifle or shotgun, as defined in subdivision sixteen of section 265.00, and refuses to yield possession of such rifle or shotgun upon the demand of a police officer. Whenever a person is certified not suitable to possess a rifle or shotgun, a member of the police department to which such certification is made, or of the state police, shall forthwith
seize any rifle or shotgun possessed by such person. A rifle or shotgun seized as herein provided shall not be destroyed, but shall be delivered to the headquarters of such police department, or state police, and there retained until the aforesaid certificate has been rescinded by the director or physician in charge, or other disposition of such rifle or shotgun has been ordered or authorized by a court of competent jurisdic- tion. (7) He knowingly possesses a bullet containing an explosive substance designed to detonate upon impact. (8) He possesses any armor piercing ammunition with intent to use the same unlawfully against another]
. Criminal possession of a weapon in the fourth degree is a class A misdemeanor. S 2. Section 265.02 of the penal law, as amended by chapter 764 of the laws of 2005, subdivision 8 as amended and subdivisions 9 and 10 as added by chapter 1 of the laws of 2013, 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] FOUR 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. For purposes of this subdivision, a large capacity ammunition feeding device shall not include an ammunition feeding device lawfully possessed by such person before the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision, that has a capaci- ty of, or that can be readily restored or converted to accept more than seven but less than eleven rounds of ammunition, or that was manufac- tured before September thirteenth, 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; or (9) Such person possesses an unloaded firearm and also commits a drug trafficking felony as defined in subdivision twenty-one of section 10.00 of this chapter as part of the same criminal transaction; or (10) Such person possesses an unloaded firearm and also commits any violent felony offense as defined in subdivision one of section 70.02 of this chapter as part of the same criminal transaction[.]; OR (11) SUCH PERSON POSSESSES A RIFLE, SHOTGUN, ANTIQUE FIREARM, BLACK POWDER RIFLE, BLACK POWDER SHOTGUN, OR ANY MUZZLE-LOADING FIREARM, AND HAS BEEN CONVICTED OF A FELONY OR SERIOUS OFFENSE; OR
(12) SUCH PERSON IS A PERSON WHO HAS BEEN CERTIFIED NOT SUITABLE TO POSSESS A RIFLE OR SHOTGUN, AS DEFINED IN SUBDIVISION SIXTEEN OF SECTION 265.00, AND REFUSES TO YIELD POSSESSION OF SUCH RIFLE OR SHOTGUN UPON THE DEMAND OF A POLICE OFFICER. WHENEVER A PERSON IS CERTIFIED NOT SUIT- ABLE TO POSSESS A RIFLE OR SHOTGUN, A MEMBER OF THE POLICE DEPARTMENT TO WHICH SUCH CERTIFICATION IS MADE, OR OF THE STATE POLICE, SHALL FORTH- WITH SEIZE ANY RIFLE OR SHOTGUN POSSESSED BY SUCH PERSON. A RIFLE OR SHOTGUN SEIZED AS HEREIN PROVIDED SHALL NOT BE DESTROYED, BUT SHALL BE DELIVERED TO THE HEADQUARTERS OF SUCH POLICE DEPARTMENT, OR STATE POLICE, AND THERE RETAINED UNTIL THE AFORESAID CERTIFICATE HAS BEEN RESCINDED BY THE DIRECTOR OR PHYSICIAN IN CHARGE, OR OTHER DISPOSITION OF SUCH RIFLE OR SHOTGUN HAS BEEN ORDERED OR AUTHORIZED BY A COURT OF COMPETENT JURISDICTION; OR (13) SUCH PERSON KNOWINGLY POSSESSES A BULLET CONTAINING AN EXPLOSIVE SUBSTANCE DESIGNED TO DETONATE UPON IMPACT; OR (14) SUCH PERSON POSSESSES ANY ARMOR PIERCING AMMUNITION WITH INTENT TO USE THE SAME UNLAWFULLY AGAINST ANOTHER. Criminal possession of a weapon in the third degree is a class D felo- ny. S 3. Paragraph 5 of subdivision a of section 265.20 of the penal law, as amended by chapter 235 of the laws of 2007, is amended to read as follows: 5. Possession of a rifle or shotgun by a person other than a person who has been convicted of a class A-I felony or a violent felony offense, as defined in subdivision one of section 70.02 of this chapter, who has been convicted as specified in subdivision [four] NINE of section [265.01] 265.02 to whom a certificate of good conduct has been issued pursuant to section seven hundred three-b of the correction law. S 4. This act shall take effect on the ninetieth day after it shall have become a law; provided, however, that if the amendments to section 265.01 of the penal law made by section 40 of chapter 1 of the laws of 2013 have not yet taken effect on such ninetieth day, then the amend- ments to section 265.01 of the penal law made by section one of this act shall take effect on the same date as section 40 of chapter 1 of the laws of 2013, takes effect; and provided, further, that if the amend- ments to section 265.02 of the penal law made by section 41-b of chapter 1 of the laws of 2013 have not yet taken effect on such ninetieth day then the amendments to section 265.02 of the penal law made by section two of this act shall take effect on the same date as section 41-b of chapter 1 of the laws of 2013, takes effect.

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