Criminal Possession of a Firearm

NEW YORK PENAL LAW SECTION 265.01-b (1) – NEW YORK CRIMINAL POSSESSION OF A FIREARM

In light of the mass shootings throughout the country, especially after the tragedy in Sandy Hook Connecticut Elementary school, the New York Legislature responded quickly by enacting a new and harsher array of gun laws. What came out of these new gun laws was the rise of the charge Criminal Possession of a Firearm, Penal Law section 265.01-b. Criminal Possession of a firearm is very close in form and text to Criminal Possession of a Weapon in the Fourth Degree, New York Penal Law section 265.01(1) for a firearm, a class A misdemeanor. An important difference is that Criminal Possession of a firearm is a class E non-violent felony. Prior to the passing of these new laws, possession of an unloaded gun could only be charged as a misdemeanor. Now if an individual is in possession of a firearm, even an unloaded one, it is up to the discretion of the prosecutor to charge one or both of these charges. To help you navigate your way through the application of these enhanced weapons laws it is important to hire a top New York weapons and firearms lawyer immediately upon arrest.

When an Unloaded Gun is Determined to be Loaded

Additionally, while possession of an unloaded gun generally seems to be a less serious charge then a loaded gun, the law’s definition of “loaded” is not quite what you would expect. In New York, a gun does not have to actually have ammunition inside of it to be considered “loaded.” If you possess and unloaded gun and you also possess ammunition for that gun, the gun is considered to be loaded. Although Criminal Possession of a Weapon in the Second Degree, New York Penal Law § 265.03, only allows an individual to be charged with the possession of a loaded gun, if such possession is outside of the home or place of business (or if the possession is with the intent to use unlawfully against another), there is a caveat. If an individual has a criminal record they are essentially exempt from this exception – meaning, prosecutors can charge them for possession in the home or place of business.

If you are charged with possession of a weapon and you have a prior criminal record you may be facing a number of additional complications. Having a prior criminal record not only prevents you from using the exception for possession of a loaded firearm, but it also exposes one to being charged with “bump-up” possession charge, Criminal Possession of Weapon in the Third Degree, New York Penal Law § 265.02. Under this section, if a person is in possession of a gun, regardless of whether it is loaded or not and they have a prior conviction of any crime, they face being charged with this additional charge, a class D felony.

Gun Laws Differ Throughout the Country – But New York Law Rules Here

Gun laws are not uniform throughout the United States and often guns bought and owned legally in other places can be accidentally brought into New York, thus rendering the gun owner illegally – if unknowingly – in possession of the firearm. Unfortunately, even dismantling the weapon and unloading the ammunition may not be enough to avoid a weapons possession charge. If a dismantled gun can be put back together and tested as operable, that would be all a prosecutor needs to charge a person with criminal possession of that gun.

More recently, in light of the rise in gun street violence in New York City, special court parts within criminal court have been developed to hear only gun cases and to fast track these cases to trial if no plea deal can be reached. The gun laws in New York are very nuanced and the punishments are harsh. If you are charged with a weapons possession it is important that you have an attorney who has a deep understanding of all these laws and who can maneuver through the exceptions and applicable defenses for you.

Recently, evidence collection teams are being set to respond to collect DNA from every single gun arrest defendant in New York City. DNA evidence, or even the lack thereof can often be a helpful tool both in negotiating a plea bargain or even at trial. The New York weapons and firearms attorneys the Law Offices of Jeffrey Lichtman are well versed and knowledgeable in how DNA can be taken from a gun and how easily the process can be tainted. Call today at (212) 581-1001 to speak to us about your case today.