Creates the offense of criminal use of a firearm in connection with a crime; repealer

1 Co-sponsor

• Tony Avella

BILL NUMBER:S2237D

Title of bill

An act to amend the penal law, the vehicle and traffic law and the general business law, in relation to criminal use of a firearm in the first degree and to repeal certain provisions of the penal law relating thereto

Purpose

The purpose of this bill is to provide stiffer sentences to criminals who use firearms to commit felonies.

Summary of provisions

The amendment to this bill makes changes to conform the bill to the New York SAFE Act.

Section one amends section 265.09 of the Penal Law to include that a person is guilty of the crime of criminal use of a firearm in the first degree when he or she displays what appears to be a Pistol, revolver, rifle, shotgun, machine gun or other firearm and provides sentencing guidelines for such crime. This section also makes conforming amendments to the sentencing provisions of Penal Law section 265.09.

Section two repeals Penal Law section 265.08, criminal use of a firearm in the second degree, which effectively upgrades all instances of criminal use of a firearm to class 3 violent felonies.

Section three through five are technical and update certain cross-references in law.

Section six provides that this law shall be effective on the first of November after it has become law.

Existing law

The sentencing provisions contained in Penal Law section 265.09(2) currently apply only where the defendant displays an actual loaded weapon in the commission of the offense.

Justification

The enhanced penalties contained in Penal Law section 265.09, relating to criminal use of a firearm in the first degree, only apply where the assailant actually carries a loaded weapon capable of being fired. Perpetrators who only display what appears to be a firearm are guilty of criminal use of a firearm in the first degree, but are not subject to this increased penalty. There is no basis for this distinction. Those who use actual firearm, and those who carry fake or unloaded firearms, carry them for the same primary purpose: to intimidate their victims into submission. Victims of these crimes cannot be expected to distinguish between real and fake or unloaded firearms when they Perceive themselves to be at gunpoint, and nor can the police, who must act as if a weapon carried by an assailant is real. The public safety is jeopardized regardless of whether a firearm used to commit a felony is fake, real, or unloaded. Accordingly, the law should treat these acts with equal severity, and criminals should not be allowed to avoid the enhanced sentencing provisions contained in Penal Law section 265.09 merely because the gun he or she used was not, on hindsight, capable of being fired.

Legislative history

S2237B of 2013 - On Calendar S.1407B of 2012 - Passed Senate 03/21/12 S.2110 of 2010 - Referred to Codes

Fiscal implications

None.

Effective date

First-of November after it shall become law