§ 265.09 Criminal use of a firearm in the first degree.
(1) A person is guilty of criminal use of a firearm in the first
degree when he commits any class B violent felony offense as defined
in paragraph (a) of subdivision one of section 70.02 and he either:
(a) possesses a deadly weapon, if the weapon is a loaded weapon from
which a shot, readily capable of producing death or other serious
injury may be discharged; or
(b) displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm.
Criminal use of a firearm in the first degree is a class B 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 seriousness 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 constitute 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 conditional 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.
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