GUN TRAFFICKING

LAWS OF NEW YORK, 2005
CHAPTER 764

EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.

AN ACT to amend the penal law, in relation to the possession and sale of firearms

Became a law December 21, 2005, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Subdivisions 1 and 2 of section 70.02 of the penal law, as amended by chapter 233 of the laws of 1980, paragraphs (a) and (b) of subdivision 1 as amended by section 6 of part A of chapter 1 of the laws of 2004, paragraph (c) of subdivision 1 as amended by chapter 584 of the laws of 2003, paragraph (d) of subdivision 1 as amended by chapter 301 of the laws of 2001, paragraphs (a) and (c) of subdivision 2 as amended by chapter 1 of the laws of 1998 and paragraph (b) and the opening paragraph of paragraph (c) of subdivision 2 as amended by chapter 189 of the laws of 2000, are amended to read as follows:

1. Definition of a violent felony offense. A violent felony offense is a class B violent felony offense, a class C violent felony offense, a class D violent felony offense, or a class E violent felony offense, defined as follows:

(a) Class B violent felony offenses: an attempt to commit the class A-I felonies of murder in the second degree as defined in section 125.25, kidnapping in the first degree as defined in section 135.25, and arson in the first degree as defined in section 150.20; manslaughter in the first degree as defined in section 125.20, rape in the first degree as defined in section 130.35, criminal sexual act in the first degree as defined in section 130.50, aggravated sexual abuse in the first degree as defined in section 130.70, course of sexual conduct against a child in the first degree as defined in section 130.75; assault in the first degree as defined in section 120.10, kidnapping in the second degree as defined in section 135.20, burglary in the first degree as defined in section 140.30, arson in the second degree as defined in section 150.15, robbery in the first degree as defined in section 160.15, criminal possession of a [dangerous] weapon in the first degree as defined in section 265.04, criminal use of a firearm in the first degree as defined in section 265.09, criminal sale of a firearm in the first degree as defined in section 265.13, aggravated assault upon a police officer or a peace officer as defined in section 120.11, gang assault in the first degree as defined in section 120.07, intimidating a victim or witness in the first degree as defined in section 215.17, hindering prosecution of terrorism in the first degree as defined in section 490.35, criminal possession of a chemical weapon or biological weapon in the second degree as defined in section 490.40, and criminal use of a chemical weapon or biological weapon in the third degree as defined in section 490.47.

(b) Class C violent felony offenses: an attempt to commit any of the class B felonies set forth in paragraph (a); aggravated sexual abuse in the second degree as defined in section 130.67, assault on a peace officer, police officer, fireman or emergency medical services professional as defined in section 120.08, gang assault in the second degree as defined in section 120.06, burglary in the second degree as defined in section 140.25, robbery in the second degree as defined in section 160.10, criminal possession of a weapon in the second degree as defined in section 265.03, criminal use of a firearm in the second degree as defined in section 265.08, criminal sale of a firearm in the second degree as defined in section 265.12, criminal sale of a firearm with the aid of a minor as defined in section 265.14, soliciting or providing support for an act of terrorism in the first degree as defined in section 490.15, hindering prosecution of terrorism in the second degree as defined in section 490.30, and criminal possession of a chemical weapon or biological weapon in the third degree as defined in section 490.37.

(c) Class D violent felony offenses: an attempt to commit any of the class C felonies set forth in paragraph (b); assault in the second degree as defined in section 120.05, stalking in the first degree, as defined in subdivision one of section 120.60, sexual abuse in the first degree as defined in section 130.65, course of sexual conduct against a child in the second degree as defined in section 130.80, aggravated sexual abuse in the third degree as defined in section 130.66, criminal possession of a weapon in the third degree as defined in subdivision four, five, six, seven or eight of section 265.02, criminal sale of a firearm in the third degree as defined in section 265.11, intimidating a victim or witness in the second degree as defined in section 215.16, soliciting or providing support for an act of terrorism in the second degree as defined in section 490.10, and making a terroristic threat as defined in section 490.20, falsely reporting an incident in the first degree as defined in section 240.60, placing a false bomb or hazardous substance in the first degree as defined in section 240.62, placing a false bomb or hazardous substance in a sports stadium or arena, mass transportation facility[,] or enclosed shopping mall as defined in section 240.63, and aggravated unpermitted use of indoor pyrotechnics in the first degree as defined in section 405.18.

(d) Class E violent felony offenses: an attempt to commit any of the felonies of criminal possession of a weapon in the third degree as defined in subdivision four, five, six, seven or eight of section 265.02 as a lesser included offense of that section as defined in section 220.20 of the criminal procedure law, falsely reporting an incident in the second degree as defined in section 240.55 and placing a false bomb or hazardous substance in the second degree as defined in section 240.61.

2. Authorized sentence.

 (a) Except as provided in subdivision six of section 60.05, the sentence imposed upon a person who stands convicted of a class B or class C violent felony offense must be a determinate sentence of imprisonment which shall be in whole or half years. The term of such sentence must be in accordance with the provisions of subdivision three of this section.

(b) Except as provided in subdivision six of section 60.05 and subdivision four of this section, the sentence imposed upon a person who stands convicted of a class D violent felony offense, other than the offense of criminal possession of a weapon in the third degree defined in subdivision four, five, seven or eight of section 265.02 or criminal sale of a firearm in the third degree as defined in section 265.11, must be in accordance with the applicable provisions of this chapter relating to sentencing for class D felonies provided, however, that where a sentence of imprisonment is imposed which requires a commitment to the state department of correctional services, such sentence shall be a determinate sentence in accordance with paragraph (c) of subdivision three of this section.

(c) Except as provided in subdivision six of section 60.05, the sentence imposed upon a person who stands convicted of the class D violent felony offenses of criminal possession of a weapon in the third degree as defined in subdivision four, five, seven or eight of section 265.02, criminal sale of a firearm in the third degree as defined in section 265.11 or the class E violent felonies of attempted criminal possession of a weapon in the third degree as defined in subdivision four, five, seven or eight of section 265.02 must be a sentence to a determinate period of imprisonment, or, in the alternative, a definite sentence of imprisonment for a period of no less than one year, except that:

(i) the court may impose any other sentence authorized by law upon a person who has not been previously convicted in the five years immediately preceding the commission of the offense for a class A misdemeanor defined in this chapter, 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 sentence would be unduly harsh and that the alternative sentence would be consistent with public safety and does not deprecate the seriousness of the crime; and

(ii) the court may apply the provisions of paragraphs (b) and (c) of subdivision four of this section when imposing a sentence upon a person who has previously been convicted of a class A misdemeanor defined in this chapter in the five years immediately preceding the commission of the offense.

§ 2. Section 265.02 of the penal law, as added by chapter 1041 of the laws of 1974, subdivision 3 as amended by chapter 695 of the laws of 1987, and subdivisions 4, 5 and 6 as amended and subdivisions 7 and 8 as added by chapter 189 of the laws of 2000, is amended to read as follows:

§ 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) [He] 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) [He] Such person possesses any explosive or incendiary bomb, bomb-shell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or

 (3) [He] Such person knowingly [has in his possession] 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

(4) Such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven, constitute a violation of this section if such possession takes place in such person's home or place of business; or

 (5) (i) Such person possesses [twenty] 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 felony.

§ 3. Section 265.03 of the penal law, as added by chapter 1041 of the laws of 1974, the opening paragraph and subdivisions 1, 2 and 3 as amended by chapter 378 of the laws of 1998, is amended to read as follows:

§ 265.03 Criminal possession of a weapon in the second degree. A person is guilty of criminal possession of a weapon in the second degree when[,]:

 (1) with intent to use the same unlawfully against another, such person:

[(1) He] (a) possesses a machine-gun; or

[(2) He] (b) possesses a loaded firearm; or

[(3) He] (c) possesses a disguised gun; or

(2) such person possesses five or more firearms.

Criminal possession of a weapon in the second degree is a class C felony.

§ 4. Section 265.04 of the penal law, as added by chapter 1041 of the laws of 1974, is amended to read as follows:

§ 265.04 Criminal possession of a [dangerous] weapon in the first degree.  A person is guilty of criminal possession of a [dangerous] weapon in the first degree when [he] 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.

Criminal possession of a weapon in the first degree is a class B felony.

§ 5. Section 265.11 of the penal law, as amended by chapter 310 of the laws of 1995, subdivision 1 as amended by chapter 189 of the laws of 2000 and the closing paragraph as amended by chapter 654 of the laws of 1998, is amended to read as follows:

§ 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 [he] such person is not authorized pursuant to law to possess a firearm and [he] 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.

Criminal sale of a firearm in the third degree is a class D felony.

§ 6. Section 265.12 of the penal law, as amended by chapter 496 of the laws of 1991 and the closing paragraph as amended by chapter 654 of the laws of 1998, is amended to read as follows:

§ 265.12 Criminal sale of a firearm in the second degree.  A person is guilty of criminal sale of a firearm in the second degree when [he] such person:

(1) unlawfully sells, exchanges, gives or disposes of to another [ten] five or more firearms; or

(2) unlawfully sells, exchanges, gives or disposes of to another person or persons a total of five or more firearms in a period of not more than one year.

Criminal sale of a firearm in the second degree is a class C felony.

§ 7. Section 265.13 of the penal law, as added by chapter 496 of the laws of 1991 and the closing paragraph as amended by chapter 654 of the laws of 1998, is amended to read as follows:

§ 265.13 Criminal sale of a firearm in the first degree.  A person is guilty of [a] criminal sale of a firearm in the first degree when [he] such person:

(1) unlawfully sells, exchanges, gives or disposes of to another [twenty] 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.

Criminal sale of a firearm in the first degree is a class B felony.

§ 8. This act shall take effect immediately; provided, however, that the amendments to paragraph (a) of subdivision 2 of section 70.02 of the penal law, made by section one of this act, shall be subject to the expiration and reversion of such paragraph, as provided in subdivision d of section 74 of chapter 3 of the laws of 1995, as amended.

   The Legislature of the STATE OF NEW YORK ss:

Pursuant to the authority vested in us by section 70-b of the Public Officers Law, we hereby jointly certify that this slip copy of this session law was printed under our direction and, in accordance with such section, is entitled to be read into evidence.

 JOSEPH L. BRUNO                     SHELDON SILVER

Temporary President of the Senate  Speaker of the Assembly