Bill S5602A-2013

Relates to sharing, making available, selling, exchanging, giving or disposing of a community gun as an element of certain criminal acts

Includes sharing, making available, selling, exchanging, giving or disposing of a community gun as an element of certain criminal acts including criminal facilitation and criminal sale of a firearm.

Details

Actions

  • Feb 10, 2014: PRINT NUMBER 5602A
  • Feb 10, 2014: AMEND AND RECOMMIT TO CODES
  • Jan 8, 2014: REFERRED TO CODES
  • May 24, 2013: REFERRED TO CODES

Memo

BILL NUMBER:S5602A

TITLE OF BILL: An act to amend the penal law, in relation to community guns and the criminal sale of a firearm in the first and third degrees

PURPOSE OR GENERAL IDEA OF BILL:

The bill seeks to address the major public safety issue whereby an illegal handgun is made available to many, usually gang associates, to be used to commit crimes and intimidate others. The bill would provide prosecutors with greater tools to attach criminal liability to all those responsible for the use of the weapon.

SUMMARY OF SPECIFIC PROVISIONS:

Sections 1 through 6 expand Article 115 - Criminal Facilitation - to provide that sharing or making available a "community gun" is punishable as criminal facilitation where the gun aids another person in the commission of a felony, or, if the person aided is under the age of sixteen, the commission of any crime. Community gun facilitation is exempted from the corroboration requirement.

Section 7 amends section 265.00 of the Penal Law to define "community gun" as a firearm shared by two or more persons, at least one of whom is not. authorized to possess a firearm.

Section 8 amends section 265.11 of the Penal Law to provide that the act of sharing or making available a community gun would constitute criminal sale of a weapon in the third degree, which is a class D felony.

Section 9 amends section 265.13 of the penal law-to provide that the unlawful sale or transfer of a firearm that causes the death of another person within three years from such sale or transfer would constitute criminal sale of a weapon in the first degree. This offense is a class B violent felony. The provision would only apply when the firearm was discharged intentionally (other than for suicide), recklessly or with criminal negligence.

JUSTIFICATION:

Criminals who commit acts of violence continue to get their hands on illegal guns. However, the people who make these illegal guns available or share community guns are not held accountable for subsequent violence and fatalities that the use of guns incurs. Law enforcement experts have reported that the use of community guns is on the rise. In a recent case highlighted by the New York Times, a street encounter among strangers turned deadly when a man accessed a community gun hidden in a bag under a stairwell in the lobby of an apartment building and fatally shot a woman with whom he had been arguing. In 2009, 16-year-old gang member. Carvett Gentles allegedly shot and seriously wounded Veda Vasquez, a 15-year-old bystander. According to the news reports, Gentles was handed the gun by older gang members. In 2008, a teenager shot a 10-year-old in Albany using a community gun that a small syndicate of criminals had passed around for repeated use in crimes. In September 2011, Tayshana Murphy, a high

school senior and star of her school's basketball team, was killed in a shooting. According to news sources, the police suspect that her killers, at least one of whom has a violent criminal history, obtained their gun from a convicted felon.

This bill will hold people responsible for sharing community guns or. illegally transferring guns that are later used in violent crimes by defining "community guns" and expanding the existing crimes of criminal facilitation and criminal sale of a firearm in three key ways: (I) the criminal facilitation crimes would be expanded to include sharing or making available a community gun (or assisting in such conduct) that aids in a crime, (2) criminal sale of a firearm in the third degree would be expanded to include sharing or making available a community gun, and (3) criminal sale of a firearm in the first degree would expand to include illegally transferring a gun later used to cause the death of another person within three years of the illegal transfer.

Creating these expanded crimes in the community gun context will punish persons who assist in sharing a gun that is used in a consequent felony but who might otherwise escape criminal responsibility because of the difficulty in proving that they possessed or sold the gun ox knew the specifics of each crime planned by the other users of the weapon. It would also make clear that a person who shares or makes available a community gun - by leaving it in an accessible location, for example -is guilty of criminal sale of a firearm in the third degree regardless of whether he transfers the gun to another person. Under the expanded definition of first degree criminal sale of a firearm, a trafficker who sells or lends illegal guns on the streets of New York could be punished in the same manner as those who commit homicides. For example, if a gang member gives a second gang member an illegal gun and the second gang member uses the weapon to kill someone within three years, the person who illegally transferred the gun would be subject to five to twenty-five years of prison time; under current law he or she could only be charged with a class D felony for illegal sale and be sentenced to as little as one year in jail.

All of the provisions outlined in this bill are tools for law enforcement and prosecutors to address the true issue of gun violence -controlling the guns in the hands of criminals. The heightened punishments send a clear deterrent message to those who traffic in illegal guns, and the expanded scope of liability will discourage the deadly criminal practice of "community guns".

PRIOR LEGISLATIVE HISTORY:

New Bill

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

To be determined.

EFFECTIVE DATE:

This act shall take effect on the one hundred eightieth day after it shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 5602--A 2013-2014 Regular Sessions IN SENATE May 24, 2013 ___________
Introduced by Sen. ROBACH -- 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 community guns and the criminal sale of a firearm in the first and third degrees THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 115.00 of the penal law, as amended by chapter 422 of the laws of 1978, is amended to read as follows: S 115.00 Criminal facilitation in the fourth degree. A person is guilty of criminal facilitation in the fourth degree when[,]: 1. believing it probable that he OR SHE is rendering aid: [1.] A. to a person who intends to commit a crime, he OR SHE engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felo- ny; or [2.] B. to a person under sixteen years of age who intends to engage in conduct which would constitute a crime, he OR SHE, being over eigh- teen years of age, engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a crime; OR 2. HE OR SHE BEING NOT AUTHORIZED PURSUANT TO NEW YORK STATE LAW TO POSSESS A FIREARM SHARES, MAKES AVAILABLE, SELLS, EXCHANGES, GIVES OR DISPOSES OF A COMMUNITY GUN, OR ASSISTS ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN FACT AIDS A PERSON TO COMMIT A FELONY, INCLUD- ING, BUT NOT LIMITED TO, A FELONY SET FORTH IN ARTICLE TWO HUNDRED SIXTY-FIVE OF THIS PART; OR
3. HE OR SHE, BEING OVER EIGHTEEN YEARS OF AGE AND NOT AUTHORIZED PURSUANT TO NEW YORK STATE LAW TO POSSESS A FIREARM, SHARES, MAKES AVAILABLE, SELLS, EXCHANGES, GIVES OR DISPOSES OF A COMMUNITY GUN, OR ASSISTS ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN FACT AIDS A PERSON UNDER SIXTEEN YEARS OF AGE TO COMMIT A CRIME, INCLUDING, BUT NOT LIMITED TO, A CRIME SET FORTH IN ARTICLE TWO HUNDRED SIXTY-FIVE OF THIS PART. Criminal facilitation in the fourth degree is a class A misdemeanor. S 2. Section 115.01 of the penal law, as added by chapter 422 of the laws of 1978, is amended to read as follows: S 115.01 Criminal facilitation in the third degree. A person IS guilty of criminal facilitation in the third degree, when: 1. believing it probable that he OR SHE is rendering aid to a person under sixteen years of age who intends to engage in conduct that would constitute a felony, he OR SHE, being over eighteen years of age, engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony; OR 2. HE OR SHE, BEING OVER EIGHTEEN YEARS OF AGE AND NOT AUTHORIZED PURSUANT TO NEW YORK STATE LAW TO POSSESS A FIREARM, SHARES, MAKES AVAILABLE, SELLS, EXCHANGES, GIVES OR DISPOSES OF A COMMUNITY GUN, OR ASSISTS ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN FACT AIDS A PERSON UNDER SIXTEEN YEARS OF AGE TO COMMIT A FELONY, INCLUDING, BUT NOT LIMITED TO, A FELONY SET FORTH IN ARTICLE TWO HUNDRED SIXTY-FIVE OF THIS PART. Criminal facilitation in the third degree is a class E felony. S 3. Section 115.05 of the penal law, as amended by chapter 422 of the laws of 1978, is amended to read as follows: S 115.05 Criminal facilitation in the second degree. A person is guilty of criminal facilitation in the second degree when[,]: 1. believing it probable that he OR SHE is rendering aid to a person who intends to commit a class A felony, he OR SHE engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such class A felony; OR 2. HE OR SHE BEING NOT AUTHORIZED PURSUANT TO NEW YORK STATE LAW TO POSSESS A FIREARM SHARES, MAKES AVAILABLE, SELLS, EXCHANGES, GIVES OR DISPOSES OF A COMMUNITY GUN, OR ASSISTS ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN FACT AIDS A PERSON TO COMMIT A CLASS A FELONY. Criminal facilitation in the second degree is a class C felony. S 4. Section 115.08 of the penal law, as added by chapter 422 of the laws of 1978, is amended to read as follows: S 115.08 Criminal facilitation in the first degree. A person is guilty of criminal facilitation in the first degree when[,]: 1. believing it probable that he OR SHE is rendering aid to a person under sixteen years of age who intends to engage in conduct that would constitute a class A felony, he OR SHE, being over eighteen years of age, engages in conduct which provides such person with means or oppor- tunity for the commission thereof and which in fact aids such person to commit such a class A felony; OR 2. HE OR SHE, BEING OVER EIGHTEEN YEARS OF AGE AND NOT AUTHORIZED PURSUANT TO NEW YORK STATE LAW TO POSSESS A FIREARM, SHARES, MAKES AVAILABLE, SELLS, EXCHANGES, GIVES OR DISPOSES OF A COMMUNITY GUN, OR
ASSISTS ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN FACT AIDS A PERSON UNDER SIXTEEN YEARS OF AGE TO COMMIT A CLASS A FELONY. Criminal facilitation in the first degree is a class B felony. S 5. Section 115.15 of the penal law is amended to read as follows: S 115.15 Criminal facilitation; corroboration. A person shall not be convicted of criminal facilitation upon the testimony of a person who has committed the felony charged to have been facilitated unless such testimony be corroborated by such other evidence as tends to connect the defendant with such facilitation; PROVIDED THAT THIS SECTION SHALL NOT APPLY TO A CONVICTION OF CRIMINAL FACILITATION FOR SHARING, MAKING AVAILABLE, SELLING, EXCHANGING, GIVING OR DISPOSING OF A COMMUNITY GUN, OR ASSISTING ANY PERSON IN SUCH ACTIVITY. S 6. Section 115.20 of the penal law, as added by chapter 1 of the laws of 2013, is amended to read as follows: S 115.20 Criminal facilitation; definitions and construction. [For purposes of this article, such conduct shall include, but not be limited to, making available, selling, exchanging, giving or disposing of a community gun, which in fact, aids a person to commit a crime. "Community gun" shall mean a firearm that is actually shared, made available, sold, exchanged, given or disposed of among or between two or more persons, at least one of whom is not authorized pursuant to law to possess such firearm. "Dispose of" shall have the same meaning as that term is defined in section 265.00 of this chapter. "Share" and "make available" shall, in the case of a firearm, be construed to include knowingly placing such firearm at a location accessible and known to one or more other persons.] AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: 1. "COMMUNITY GUN" SHALL MEAN A FIREARM THAT IS SHARED, MADE AVAIL- ABLE, SOLD, EXCHANGED, GIVEN OR DISPOSED OF AMONG OR BETWEEN TWO OR MORE PERSONS, AT LEAST ONE OF WHOM IS NOT AUTHORIZED PURSUANT TO LAW TO POSSESS A FIREARM. 2. "DISPOSE OF" SHALL HAVE THE SAME MEANING AS PROVIDED IN SECTION 265.00 OF THIS PART. 3. "SHARE" AND "MAKE AVAILABLE" SHALL, IN THE CASE OF A FIREARM, BE CONSTRUED TO INCLUDE, BUT SHALL NOT BE LIMITED TO, PLACING SUCH FIREARM AT A LOCATION ACCESSIBLE AND KNOWN TO ONE OR MORE OTHER PERSONS. S 7. Section 265.00 of the penal law is amended by adding a new subdi- vision 26 to read as follows: 26. "COMMUNITY GUN" SHALL HAVE THE DEFINITION SET FORTH IN SECTION 115.20 OF THIS PART, AND THE TERMS "SHARE" AND "MAKE AVAILABLE" SHALL BE CONSTRUED AS SET FORTH IN SUCH SECTION. S 8. Section 265.11 of the penal law, as amended by chapter 764 of the laws of 2005, is amended to read as follows: S 265.11 Criminal sale of a firearm in the third degree. A person is guilty of criminal sale of a firearm in the third degree when such person is not authorized pursuant to law to possess a firearm and such person unlawfully either: (1) sells, exchanges, gives or disposes of a firearm or large capacity ammunition feeding device to another person; [or] (2) possesses a firearm with the intent to sell it; OR (3) SHARE OR MAKES AVAILABLE A COMMUNITY GUN. Criminal sale of a firearm in the third degree is a class D felony. S 9. Section 265.13 of the penal law, as amended by chapter 764 of the laws of 2005, is amended to read as follows: S 265.13 Criminal sale of a firearm in the first degree.
A person is guilty of criminal sale of a firearm in the first degree when such person: (1) unlawfully sells, exchanges, gives or disposes of to another ten or more firearms; [or] (2) unlawfully sells, exchanges, gives or disposes of to another person or persons a total of ten or more firearms in a period of not more than one year; OR (3) BEING NOT AUTHORIZED BY NEW YORK STATE LAW TO POSSESS A FIREARM UNLAWFULLY SHARES, MAKES AVAILABLE, SELLS, EXCHANGES, GIVES, OR DISPOSES OF A FIREARM TO ANOTHER PERSON, AND, WITHIN THREE YEARS THEREAFTER, THE FIREARM IS DISCHARGED AND CAUSES THE DEATH OF ANOTHER PERSON. THE PROVISIONS OF THIS SUBDIVISION SHALL ONLY APPLY WHEN SUCH FIREARM WAS DISCHARGED INTENTIONALLY, RECKLESSLY OR WITH CRIMINAL NEGLIGENCE, PROVIDED THAT THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY WHEN SUCH FIREARM WAS DISCHARGED INTENTIONALLY FOR PURPOSES OF COMMITTING SUICIDE. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "FIREARM" SHALL INCLUDE BUT NOT BE LIMITED TO A COMMUNITY GUN. Criminal sale of a firearm in the first degree is a class B felony. S 10. This act shall take effect on the one hundred eightieth day after it shall have become a law.

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