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
S1422-2013 Text
S T A T E O F N E W Y O R K
1422
2013-2014 Regular Sessions
I N 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;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05841-02-3 S. 1422 2
(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:
S. 1422 3
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.
S. 1422 4
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 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:
S. 1422 5
Criminal sale of a firearm in the first degree is a class 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.
