New York Criminal Possession Of A Firearm

by ECL Writer
Washington State New Gun Law

New York Criminal Possession of a Firearm is a serious offense that carries severe legal consequences. In the state of New York, strict laws regulate the possession of firearms, including handguns, rifles, and shotguns. Violation of these laws can result in criminal charges and even imprisonment.

The possession of a firearm is a right protected by the Second Amendment of the United States Constitution. However, the state of New York has enacted several laws and regulations to prevent the unlawful use of firearms and ensure public safety.

If you are found in possession of a firearm without the proper permits or licenses in New York, you may face charges of criminal possession of a firearm. These charges can range from a misdemeanor to a felony, depending on the circumstances of the case and the type of firearm involved.

In this article, will explore the different types of criminal possession of firearm charges in New York, the penalties for each offense, and what you can do if you are facing such charges. We will also discuss some of the defenses that may be available to you and the importance of hiring an experienced criminal defense attorney to represent you.

Criminal Possession Of A Firearm: NY Penal Law 265.01-B(1)

What was once “just” a misdemeanor infraction in New York State is now a felony penalty as of March 2013. Police and prosecutors may detain you and file charges against you for violating New York Penal Law 265.01-b if you are found in possession of an unauthorized or unregistered firearm, such as a pistol or revolver, in New York City, Queens, Manhattan, Brooklyn, White Plains, Yonkers, New City, Poughkeepsie, Beacon, Nyack, Carmel or any other municipality (1). The addition of PL 265.01-b(1), a class “E” felony punishable by a penalty of up to four years in jail whether you have a criminal history or a spotless record, to the list of what are undoubtedly the strongest and most serious weapon offenses and statutes on the books.

Don’t be misled. You unquestionably need the advice of an experienced weapons lawyer and qualified criminal defense attorney should you be arrested, arraigned, indicted, or face a trial for criminal possession of a firearm. Whether your firearm is licensed out-of-state or, in the case of New York City, even if it is permissible outside of the five boroughs, judges and prosecutors in the Hudson Valley suburbs and New York City will undoubtedly consider establishing bail when you first appear in court.

Elements Of Criminal Possession Of A Firearm: NY Penal Law 265.01-B(1)

It’s not necessary for the pistol or revolver you own to be loaded in order for you to be charged with the even more serious violent crime of second-degree criminal possession of a weapon, according to New York Penal Code 265.03. But, it may be loaded. The firearm in question needs merely to be operational to violate NY Penal Code 265.01-b(1), and your possession of it is prohibited because it is not registered or allowed in the area where you were arrested.

Keep in mind that breaking the law is not an excuse. Even though it is responsible and appropriate, carrying or keeping the pistol in a secured hard-side case is not a defense. The sole requirement is that you intentionally held the actual revolver, handgun, or gun. It does not matter whether you knew or did not know you were in New York without the necessary authorization.

The two mental states differ significantly from one another. Although you may have mistakenly believed that because your gun or rifle had a license from Florida, New Jersey, Texas, or California, you could legally own or carry it in New York, this is untrue. Could it lessen how you acted? Sure, although it does not serve as a defense against a “strict liability” charge like criminal possession of a firearm.

Degrees In New York Criminal Possession Of A Firearm

Criminal Possession of a Weapon In The First Degree

Although it is not frequently charged in New York, first-degree criminal possession of a weapon is nonetheless a serious crime with severe penalties. According to the law, there are two situations that could result in charges. The first entails the use of an explosive device. In this case, knowingly possessing an explosive material with the intent to use it unlawfully against someone else or property is criminal possession of a weapon in the first degree. A bomb, an incendiary or explosive device, or another object that has the potential to explode and result in fatalities or serious injuries can all be considered explosive substances. Further terrorism-related or federal weapons charges may be brought against you if you are found to be in possession of a bomb or another highly explosive device.

If the prosecution establishes beyond a reasonable doubt that the defendant knowingly possessed the explosive without a license or other authorization, the jury may draw the conclusion that the defendant intended to use the explosive substance unlawfully against another person or another person’s property. But, the jury is not obligated to reach that conclusion. Presenting evidence to refute the defendant’s intention, knowledge, or possession of the explosive substance is one possible defense tactic. Also, any police misbehavior, such as an unauthorized search or seizure, may be contested by the defense attorney.

A person is not allowed to knowingly own 10 or more firearms, according to the second section of the law on criminal possession of a weapon in the first degree. Any handgun, revolver, sawed-off shotgun, rifle, as well as specific semi-automatic weapons and other assault weapons, are all considered to be guns under the definition. Essentially, the law targets persons who illegally own a lot of firearms, including unlicensed gun dealers. If the defendant is not permitted or allowed to possess a gun, or if any of the guns are not registered, he or she may also be charged with criminal possession of an illegal or unlicensed firearm.

Second Degree Criminal Possession of a Weapon: NY Penal Law 265.03

When you have a loaded firearm (such as a pistol, revolver, handgun, etc.) in public without a license or permit, you have violated Penal Code 265.03(3). You don’t have to shoot the gun or wave it around. No distinction is made by the law for this specific offense based on how you are alleged to have used the revolver or the exact facts, such as whether it was physically loaded or whether the ammunition was close by.

Keep the following in mind before discussing the components of illegally possessing a loaded firearm. You are liable to PL 265.03 and the severe sentencing rules if you hold a permit from another state but possess that revolver or pistol in New York City or State without the required permit in this jurisdiction, barring a very rare exception. Although you may have been ignorant of the SAFE Act or the law when you came to see family, you are nevertheless culpable in the eyes of the law.

It makes no difference whether you bought your gun off the street or the Port Authority Police Department detained you after you attempted to declare your out-of-state pistol before boarding your flight home at JFK or LaGuardia Airport, despite the fact that there may be a practical difference. Simply said, gun arrests at NYC airports are identical to those on the street.

Criminal Possession of a Weapon in the Third Degree: NY PL 265.02

A serious felony and one of the numerous felonies involving weapons in New York is criminal possession of a weapon in the third degree, or CPW 3. Defense lawyers skilled in defending those accused of a firearm, knife, and related violations frequently see the same general allegations over and over again even though the particular facts may differ. This is true despite the fact that the police may charge you with any one of the numerous subsections of Penal Law 265.02 upon your arrest.

Although there are many subsections, the following are some of the crimes that the NYPD, as well as the County and New York State Police, most frequently charge in New York City, Westchester, Rockland, and the Hudson Valley.

The CPW “Bump Up” – NY PL 265.02(1)

You are guilty of NY PL 265.02(1) when you violate specific subsections of Penal Law section 265.01, Criminal Possession of a Weapon in the Fourth Degree, a lesser misdemeanor, and have previously been convicted of any crime. Often referred to as the CPW “bump up,” if you violate sections (1) or (2) of Criminal Possession of a Weapon in the Fourth Degree for possessing a switchblade, for example, and you have ever been convicted of any other crime (it does not matter if it was for shoplifting ten years earlier or a bar fight twenty years ago), that previous criminal conviction can be relied upon by prosecutors to elevate the new charge from what would normally be an “A” misdemeanor punishable by up to one year in jail to this felony punishable by up to seven years in state prison.

Defaced Weapons – NY PL 265.02(3)

NY PL 265.02(3) is violated where you knowingly possess certain weapons, including any firearm, that are defaced for the purpose of hiding a crime or misrepresenting the identity of the contraband. Defacing may include modifying, scratching of parts of, or removing of serial or other identifying numbers of a firearm.

This chare often, but by no means always, arises in guns that are recovered from individuals in arrests for other so-called “street crimes” such as Robbery and Burglary.

Multiple Firearms – NY PL 265.02(5)

If you possess three or more firearms (handgun, pistol, revolver, etc.) without a proper license or you possess the same and you have been previously convicted of a felony or a class “A” misdemeanor 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, you are guilty of this subsection.

Assault Weapon – NY PL 265.02(7)

If you possess an assault weapon, pursuant to Penal Law 265.00(22), you run afoul of this statute.

Fourth Degree Criminal Possession Of A Weapon: NY Penal Law 265.01

Regardless of the type of weapon used—a switchblade knife, gravity knife, metal knuckles, firearm, electric stun gun, or another dangerous instrument—the majority of the District Attorney’s Offices in the New York City area treat these crimes as some of the most serious misdemeanor offenses under the Penal Law. However, just because prosecutors are less lenient with people who have been detained and charged with possessing illegal weapons in accordance with New York Penal Law 265.01 does not mean that your attorney won’t be able to refute or mitigate the allegations, even if it was an error or an infraction brought on by a lack of knowledge of the law.

Fourth Degree Criminal Possession of a Weapon in general has two prevalent variants and is sometimes abbreviated as CPW 4. The first, known as “per se” infractions, occurs when you possess specific objects regardless of their intended use. This is a violation of Criminal Code 265.01(1). The mere possession of these things is considered unlawful under the law. The difference between the second infraction of this law, Criminal Code 265.01(2), and the first is how the instrument is used as a dangerous instrument, which determines the accusation. This is true even if the weapon is not something that one would typically classify or perceive to be a weapon.

Penalties And Punishment For New York Criminal Possession Of A Firearm: NY Penal Law 265.01-B(1)

Every New York Criminal possession of a firearm has its penalties and punishment.

Criminal Possession of a Weapon in the First Degree

In New York, first-degree criminal possession of a firearm is a class B felony. If you are found guilty, you will be subject to a mandatory minimum penalty of five years in jail as well as a potential maximum sentence of 25 years. The required minimum sentence may be longer than five years if you have a criminal history. Moreover, a $30,000 fine is an option. You will lose several of your civil rights after being convicted of a felony, including the ability to vote and possess firearms.

Second Degree Criminal Possession of a Weapon: NY Penal Law 265.03

The law is very clear, and so should be your knowledge of it. Your sentencing judge in a New York City Supreme Court or an upstate County Court may sentence you to up to fifteen years in prison if you are found guilty of this class “C” violent felony. By law, a non-discretionary three-and-a-half-year term is a minimum punishment. The most terrifying repercussion of a conviction under PL 265.03 is that this kind of punishment presupposes that you had no prior criminal history at all prior to your arrest for Second Degree Criminal Possession of a Weapon. The minimum sentence for a predicate offender is five or seven years, depending on the severity of your criminal history.

Criminal Possession of a Weapon in the Third Degree: NY PL 265.02

Third-degree criminal possession of a weapon is one of the offenses with maybe the widest range of outcomes in terms of the final disposition and sentence between individual cases. Though the obligatory minimum sentence for a CPW 3 crime is presumed to be two years, there is a chance that you won’t spend any time behind bars if your attorney successfully negotiates a lesser sentence. On the other hand, a judge may sentence you to up to seven years in prison if you are found guilty. To minimize your exposure, you need a lawyer with experience and legal expertise that has given the variance in punishment and sentencing.

Fourth Degree Criminal Possession of a Weapon: NY Penal Law 265.01

Every section of CPW4 constitutes a class “A” misdemeanor. As a result, if found guilty, you may be sentenced to probation, community service, fines, and/or penalties in addition to a year in a county or city jail.

Defenses For New York Criminal Possession Of A Firearm

New York Criminal possession of a firearm is a serious offense that can lead to severe penalties such as fines, imprisonment, and other consequences. However, there are various defenses that a defendant can use to fight such charges. In this essay, we will discuss some of the defenses that can be used for criminal possession of a firearm.

The first defense that a defendant can use is the lack of knowledge. If the defendant was not aware that they were in possession of a firearm or if they did not know that the firearm was illegal, they may have a valid defense. In such cases, the defendant can argue that they were not aware that they were committing a crime, and thus, they should not be held accountable.

Another defense that can be used is the claim of ownership. If the defendant can prove that they owned the firearm legally, they may be able to avoid conviction. This can be done by producing documents such as a purchase receipt, a registration certificate, or any other relevant paperwork. However, it is important to note that mere ownership of a firearm does not always guarantee a successful defense.

A third defense that can be used is the claim of self-defense. If the defendant can prove that they possessed the firearm for self-defense purposes, they may be able to avoid conviction. For instance, if the defendant can show that they were in a dangerous situation and needed the firearm to protect themselves or their loved ones, they may be able to avoid criminal charges.

The fourth defense that can be used is the violation of the defendant’s Fourth Amendment rights. If the firearm was obtained through an illegal search and seizure, the defendant can argue that their Fourth Amendment rights were violated. In such cases, any evidence obtained through illegal search and seizure may be inadmissible in court, which can weaken the prosecution’s case.

Lastly, the defense can argue that the defendant was coerced or entrapped into possessing the firearm. For example, if a police officer coerced the defendant into purchasing or possessing the firearm, the defense may argue that the defendant was not acting of their own free will.

Talk To A Lawyer

In conclusion, New York criminal possession of a firearm is a serious offense that can have severe consequences. If you or someone you know is facing charges related to criminal possession of a firearm, it’s crucial to seek the advice of a licensed attorney who has experience in this area of law. A lawyer can help you understand your legal options, evaluate the evidence against you, and build a strong defense strategy. They can also guide you through the legal process, protect your rights, and represent you in court if necessary. Remember, even if you feel that you have a valid defense, navigating the legal system on your own can be complicated and overwhelming. By consulting with a skilled criminal defense lawyer, you can ensure that your case is handled in the most effective way possible. So, if you or someone you know is facing criminal possession of firearm charges, don’t hesitate to seek legal representation. Talk to a lawyer today to protect your rights and fight for your freedom.

Leave a Comment

This blog is ONLY for informational or educational purposes and DOES NOT substitute professional legal advise. We take no responsibility or credit for what you do with this info.