265.09 - Criminal use of a firearm in the first degree.

§ 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.