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

Summary of provisions

The bill first expands Penal Law Section 115 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.

The bill further defines a "community gun" and amends section 265.11 of the Penal Law to provide that the act of sharing or making available a community gun constitutes criminal sale of a weapon in the third degree, a class D felony.

The bill lastly 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 constitutes 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.

EXISTING LAW:. Section 28 of the tax law.

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 seri- ously wounded Vade 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. Accord- ing 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: (1) 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 or 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 defi- nition 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 enforce- ment and prosecutors to address the true issue of gun violence -control- ling 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".

Legislative history

S.7746 of 2012 - Passed Senate 06/20/12

Fiscal implications

None.

Local fiscal implications

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