Criminal Possession of a Weapon in New York City – Second Degree
NEW YORK PENAL LAW SECTION 265.03 – CRIMINAL POSSESSION OF A WEAPON IN THE SECOND DEGREE
Criminal Possession of a Weapon in the Second Degree is a serious felony offense in New York.
Both politicians and the media have had a recent renewed focus on guns and gun violence in New York City. As a result, District Attorney’s Offices all through the city and adjoining counties are taking a hard line with loaded guns, especially if they believe they can charge intent to use, or if the possession takes place in public. The results of this are that prosecutors push for strict penalties for these types of criminal cases.
The most common offenses charged under this section are below:
Loaded Gun with Intent to Use
A person can be charged with Criminal Possession in the Second Degree if that person possesses a loaded gun with intent to use the gun unlawfully against another person. The “intent to use” element is a difficult grey area under the law. The determination as to whether a person intends to use the gun goes far beyond whether the gun is pointed at somebody with the safety off. Juries are permitted to draw certain inferences based on various circumstances to try to determine the state of mind of the person who has the gun and whether or not that person intended to use the gun. For example, if a person is arrested during the sale of controlled substances, and it is determined that the individual possessed a loaded gun, the law allows the jury to infer that since the person took a loaded gun to a drug sale, they intended to use the gun unlawfully against another person, regardless of whether or not the other person even know that the person was carrying a loaded gun.
If you have been charged with possession of a loaded gun with intent to use it, it is extremely important to contact a top New York Criminal weapons and firearms Attorney with a thorough understanding of the law regarding firearms and how courts and juries understand and interpret the phrase “intent to use.”
Loaded Gun Outside Home or Place of Business
Regardless of intent, a person is guilty of Criminal Possession of a Weapon in the Second Degree if he possess a loaded gun outside of their home or place of business without an applicable permit. This permit must be issued by the State of New York. What this means is that even if a person has a license to carry a firearm in any or every other state, if that person is found with a firearm in New York, and that gun is loaded, and the person is not in their home or at work, they are guilty of violating this statute. Further, what constitutes a “loaded” gun is not as cut and dry as most people think. When the average person thinks of a loaded gun, they think of a revolver with bullets in the chamber or a handgun with the clip inserted and bullets in the clip. The definition of loaded expands far beyond that. In New York, a gun is considered loaded, even if there are no bullets in the gun, if the gun and bullets are both within close proximity to the person, such that the person has quick and easy access to them. If a person is sitting on a park bench, and there is a gun next to his left leg and a clip of bullets next to his right leg, even if he is holding the empty gun, he is in possession of a loaded firearm outside of his home or place of work, and can be charged under this statute.
Criminal Possession of a Weapon in the Second Degree is a class C felony. The statutory minimum required sentence for this offense is 3.5 years in prison, and that is for someone who has no previous criminal record. The maximum sentence is 15 years. Again, this is true even if a person has their firearm registered, and has a permit to legally carry it in another state.
In New York City, the Evidence Collection Teams of the NYPD will swab every firearm recovered for DNA evidence. Being able to analyze the DNA test results is a necessary part of assessing whether or not those results will help, or hurt, a person’s chances for a favorable case outcome. DNA evidence can be a useful tool for exoneration, a smoking-gun linking a person to a crime, or inconclusive and not indicative or anything concrete. Understanding DNA results is crucial to any criminal case where these tests are conducted.
Differences Between Second- and Third-Degree Charges
Any criminal case involving the possession of a weapon is a serious matter. While both second- and third-degree criminal possession of a weapon are serious felonies in New York, key distinctions determine how a case is charged and sentenced.
Third-degree possession typically applies when someone knowingly possesses an unlicensed firearm, a defaced weapon, or multiple firearms. It is a Class D felony and can carry significant prison time, but it does not require proof that the weapon was loaded or intended for immediate use.
Second-degree possession raises the stakes. This charge, a Class C violent felony, applies when a person possesses a loaded firearm outside their home or place of business, or when the prosecution can infer intent to use it unlawfully. Conviction almost always leads to mandatory prison time.
Because of the elevated penalties, prosecutors will often look for a reason to bring second-degree charges. This makes it more important than ever to have the support of legal counsel who understands how to not only fight for your innocence but also argue that the state has overcharged you.
Common Defense Strategies
Beating a charge of second-degree possession of a firearm in NYC starts with investigating the facts and identifying the strongest possible defense strategy. With the help of our firm, you could put forward a winning approach that helps you secure the best possible outcome. Some of the most common strategies in these types of cases include the following.
Lack of Intent
An important part of second-degree possession of a firearm is your intent. To be guilty of this charge, the prosecutor must be able to show that you possessed a loaded weapon with the intent to unlawfully use it against another person. This is important, because it means showing that you were unintentionally in possession of a loaded gun means you did not have the intent to commit a crime. It is important to remember that the intent element is not relevant if you have been accused of possessing the weapon outside of the home.
Constitutional Violations
The prosecution’s case can quickly fall apart if your attorney can show your rights were violated. The United States Constitution protects you against unlawful searches and seizures, and you may be able to exclude important evidence from trial if those rights are violated. For example, if the police search your home without a warrant or your permission and find a weapon, that evidence might not be used at trial if your attorney successfully petitions the court to suppress it.
Lack of Possession
The question of possession can be central to these cases. Even if a loaded weapon was in your vicinity, you might be able to show that you were not in possession of it. It is worth noting that the law recognizes both active and constructive possession. That means you could be found guilty even if the gun was not directly on your person if you had immediate access to it.
Learn How Our New York City Attorneys Can Help in a 2nd Degree Weapons Possession Charge
Being charged with criminal possession of a weapon in the second degree in New York City is a serious matter. A conviction could have lasting consequences that follow you for the rest of your life. The good news is that you are entitled to a vigorous defense, and we are ready to help.
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 their exceptions. The best New York weapons and firearms attorneys at the Law Offices of Jeffrey Lichtman have years of experience in handling – and winning – New York weapons and firearms cases. Call us to speak about your case.