New York Gun Charges – The Fast Law Firm

New York Gun charges are punishable by serious jail time. some of the most serious penalties can be divided into three categories:

possession charges
use charges
sale charges

New York Gun Charges Definitions

These are the relevant legal definitions from the New York Penal Law:

What is a Firearm?

Under New York Penal Law Section 265.00(3), a firearm is either:

(a) any pistol or revolver; OR

(b) a shotgun with less than 18 inches in length; OR

(d) any weapon made from a shotgun or rifle with an overall length of less than 26 inches, OR

(e) an assault weapon.

Note: Antique firearms, are not considered "Firearms" for the purposes of Section 265.00(3).

What is a Rifle?

Under New York Penal Law Section 265.00(11), a rifle is any weapon that someone intends to be fire from the shoulder, which us made or remade to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile for each pull of the trigger.

What is a Shotgun?

New York Penal Law Section 265.00(12) defines a shotgun as any weapon that someone intends to be fire from the shoulder, which is made or remade to use the energy of the explosive in a fixed shotgun shell, firing either a number of ball shot or a single projective for each pull of the trigger.

Legal Definition of a Loaded Firearm

A loaded firearm is any firearm which is either (1) loaded with ammunition or (2) possessed with a quantity of readily available ammunition, which may be used to fire that firearm.

Readily Available Ammunition Example:

Let’s say the police execute a search warrant and find a 9 MM handgun in a backpack. The gun doesn’t have any rounds in the magazine or chamber. By definition, this gun is not loaded.

However, let’s say the police find 9 MM ammunition in the same backpack as the gun. Therefore, in this situation, the gun is legally considered to be loaded. Even though the ammunition is located outside the gun, it is readily accessible. Importantly, the ammunition caliber must match the gun. Thus, if the ammunition can’t be fired from the gun, the gun is not considered a loaded firearm.

New York Gun Charges – Possession

Gun and weapons possession charges in New York range from Class “A” Misdemeanors all the way up to Class “B” Violent felonies. The severity of the charge depends on the type of weapon, its use and the individual’s criminal history. Below is the explanation of the weapons possession charges, ranging from the least serious to most serious:

Criminal Possession of a Weapon in the Fourth Degree

New York Penal Law Section 265.01 is titled Criminal Possession of a Weapon in the Fourth Degree. This charge is the least serious of all charges and is a Class “A” Misdemeanor. Therefore, it is punishable by up to one year in prison. Specifically, Criminal Possession of a Weapon in the Fourth Degree prohibits:

(1) Possession of a per se weapon (PL 265.01(1))

Meaning, no intent to use unlawfully is necessary. Just possession is enough. The following are considered per se weapons:

firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sand /.club, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star.”

(2) Possession of any dangerous or deadly instrument with intent to use unlawfully against another (PL 265.01(2))

This includes daggers, dangerous knives, dirk, razors, stilettos, imitation pistols, or any other dangerous or deadly instrument or weapon.

(3) Prior felony conviction and possession of a rifle or shotgun (PL 265.01(4))

This also includes antique firearms, black powder rifles, black powder shotguns, or any muzzle-loading firearms.

(4) Possession of any dangerous and deadly weapon while not being a citizen of the United States (PL 265.01(5))

(5) Possession of a rifle or shotgun by a certified not suitable person (PL 265.01(6))

A “certified not-suitable person,” is defined in New York Penal Law Section 265.00(16) and includes:

individuals judicially adjudicated incompetent
individuals confined to any hospital or institution for mental illness

(6) Possession of a bullet containing an explosive substance (PL 265.01(7))

There is no specific definition of the term “explosive substance,” However, in a 1974 case, People v. Cruz, 34 NY2d 362 (1974), the New York Court of Appeals stated that the term “explosive substance” is “susceptible of reasonable application in accordance with the common understanding of men.” Further, a 2001 Third Department case People v. Ward, 282 A.D.2d 819 held that the term maintains its everyday meaning, since it doesn’t have a definition in the New York Penal Law.

(7) Possession of armor piercing ammunition with intent to use unlawfully against another (PL 265.01(8))

Armor piercing ammunition pistol or revolver ammunition, with a projectile or projectile core constructed entirely from one or any combination of the following substances:

tungsten alloys,
steel,
iron,
brass,
bronze,
beryllium copper, or
uranium.

Penalties for Criminal Possession of a Weapon in the Fourth Degree

Criminal Possession in the Fourth Degree is a Class “A” Misdemeanor. Therefore, it is punishable by up to one years in prison.

Criminal Possession of a Weapon on School Grounds (PL 265.01-a)

New York Penal Law Section 265.01-a prohibits possession of weapons on school grounds. Specifically, the elements of the charge are:

Knowing possession of
An operable
A rifle, shotgun, or firearm
In or upon building of ground used for educational purposes

Importantly, for this charge, the gun does not need to be loaded, however it needs to be operable. This charge is a Class “E” non-violent felony. As such, it is punishable by up to 4 years in prison.

Criminal Possession of a Firearm (PL 265.01-b)

Under New York Penal Law 265.01-b, a person is guilty of Criminal Possession of a Firearm when he possesses any firearm. As described above, the definition of firearm is very broad and encompasses many types of weapons.

This statute became law in March of 2013. Prior to that time period, possession of a firearm (without any aggravating circumstances) was a misdemeanor. Currently, Criminal Possession of a Firearm is a Class “E” non-violent felony. Therefore, it is punishable by up to 4 years in prison.

Criminal Possession of a Weapon in the Third Degree (PL 265.02)

Under New York Penal Law 265.02, the following is Criminal Possession of a Weapon in the Third Degree:

Penal Law 265.02(1)

Criminal Possession of a Weapon in the Fourth Degree (subdivisions 1,2,3, or 5 of PL 265.01) and a prior conviction for any crime.

Penal Law 265.02(2)

Possession of any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use.

Penal Law 265.02(3)

Knowing possession a machine-gun, firearm, rifle or shotgun which has been defaced (PL 265.02(3)). The term “defaced” means “remove, deface, cover, alter or destroy the manufacturer’s serial number or any other distinguishing number or identification mark.”

Penal Law 265.02(5)(i) and Penal Law 265.02(5)(ii)

Possession of three or more firearms (PL 265.02(5)(i)) or possession of a firearm and a prior conviction on any weapons charge in Section 265 of the New York Penal Law within the prior five years (PL 265.02(5)(ii)).

Penal Law 265.02(6)

Knowing possession of a disguised gun. Under Penal Law 265.00(20), a disguised gun is any weapon or device capable of being concealed and is intended to appear to be something other than a gun.

Penal Law 265.02(7)

Assault weapon possession. The definition of “assault weapon” comes from Penal Law Section 265.00(22).

Penal Law 265.02(8)

Possession of a large capacity ammunition feeding device.

Penal Law 265.02(9)

Commission of a drug trafficking felony (as defined in New York Penal Law Section 10.00(21)) and possession of an unloaded firearm.

Penal Law 265.02(10)

Possession of an unloaded firearm and commission of a violent felony offense.

Penalties for Criminal Possession of a Weapon in the Third Degree

Criminal Possession of a Weapon in the Third Degree is a Class “D” Violent felony. As such, it is punishable by up to 7 years in prison.

Criminal Possession of a Weapon in the Second Degree (PL 265.03)

The following conduct constitutes Criminal Possession of a Weapon in the Second Degree:

Machine-gun possession with intent to use unlawfully against another (PL 265.03(1)(a));
Possession of a loaded firearm with the intent to use unlawfully against another (PL 265.03(1)(b));
Disguised gun possession with the intent to use unlawfully against another (PL 265.03(1)(c));
Possession of five or more firearms (PL 265.03(2));
Possession of any loaded firearm outside of the individual’s home or place of business (PL 265.03(3)).

Applicable Definitions

Machine gun

The definition comes from CPL Section 10.00(1). Specifically, it states that a machine gun is a weapon any description or size that allows for rapid or automatic discharge from a magazine with one continuous pull of the trigger.

Disguised gun

Under CPL Section 10.10(20), a disguised gun is any weapon or device capable of being concealed on the person from which a shot can be discharged and is intended to appear to be something other than a gun.

Penalties for Criminal Possession of a Weapon in the Second Degree

Criminal Possession of a Weapon in the Second Degree is a Class “C” Violent Felony. As such, it is punishable by up to 15 years in prison.

Criminal Possession of a Dangerous Weapon in the First Degree (PL 265.04)

This charge prohibits possession of:

(1) Any explosive substance with intent to use unlawfully against another person or someone’s property; OR

(2) Ten or more firearms.

Penalties for Criminal Possession of a Weapon in the First Degree

Criminal Possession of a Weapon in the First Degree is a Class B Violent Felony. Therefore, it is punishable by up to 25 years in prison.

Gun Sale Charges

Criminal Sale of the Firearm in the Third Degree (PL 265.11)

Under this statute, a person is guilty of a criminal sale when without legal authorization to possess a firearm, unlawfully either:

(1) selling, exchanging, giving or disposing of a firearm or large capacity ammunition feeding device to another person; OR

(2) possessing a firearm with the intent to sell it.

Penalties for Criminal Sale of a Firearm in the Third Degree

Criminal Sale of a Firearm in the Third Degree is a Class “D” violent felony. Therefore, it is punishable by up to 7 years in prison.

Criminal Sale of a Firearm in the Second Degree (Penal Law 265.12)

Similarly to Criminal Sale of a Firearm in the Third Degree, this charge has the same elements, but has a quantity of firearms. The two sections of this charge require unlawfully:

(1) Selling, exchanging, giving or disposing to another of five or more firearms; or

(2) Selling, exchanging, giving or disposing to another person or persons a total of five or more firearms in a period of one year or shorter.

Note: the difference between these charges is number of guns in each transaction. Section 1 requires 5 or more firearms, while section 2 requires five firearms transactions within a one-year period.

Penalties for Criminal Possession of a Firearm in the Second Degree

Criminal sale of a firearm in the second degree is a Class “C” violent felony. As such, it can be punishable by up to 15 years in prison.

Criminal Sale of a Firearm in the First Degree (PL 265.13)

This charge is similar to the two other previously explained charges, however Criminal Sale of a Firearm in the First Degree has a higher quantity of firearms – ten! Specifically, the elements of Criminal Sale of a Firearm in the First Degree are unlawfully:

(1) selling, exchanging, giving or disposing of to another ten or more firearms; OR

(2) selling, exchanging, giving or disposing of to another person or persons a total of ten or more firearms in a period of not more than one year.

Penalties for Criminal Sale of a Firearm in the First Degree

Criminal sale of a firearm in the first degree is a Class “B” violent felony. As such, it is punishable by up to 25 years in prison.

Criminal Sale of a Firearm With Aid of a Minor (PL 265.14)

This charge is similar to the charge of Criminal Sale of a Firearm, with one additional requirement. Specifically, the aid of a minor under 16 years of age. The elements of Criminal Sale of a Firearm with the Aid of a Minor are:

Being over the age of 18, AND
Acting with the mental culpability required, AND
Soliciting, requesting, commanding, importuning or intentionally aiding
A person under 16 years old, AND
Knowingly and unlawfully selling, exchanging, giving or disposing of a firearm.

Penalties for Criminal Sale of a Firearm with the Aid of a Minor

Criminal Sale of a Firearm with the aid of a minor is a Class “C” violent felony. As such, it is punishable by up to 15 years in jail.

Criminal Sale of a Firearm to a Minor (PL 265.16)

This particular charge prohibits unlawful sales of firearms to someone who is or reasonably appears to be under the age of 19, and who is not licensed by law to possess a firearm. Specifically, the following are the elements of this charge:

Being not authorized by law to possess a firearm;
Unlawfully selling, exchanging, giving or disposing of a firearm to another person,
Who is or reasonably appears to be less than nineteen years of age, AND
Who is not licensed pursuant to law to possess a firearm.

Penalties for Criminal Sale of a Firearm to a Minor

Criminal sale of a firearm to a minor is a Class “C” violent felony. Therefore, it is punishable by up to 15 years in jail.

Criminal Purchase or Disposal of a Weapon (PL 265.17)

This particular charge approves to situations where individuals are either: (1) while knowing that they are themselves prohibited from possessing firearms, they purchase a firearm or (2) while knowing that another individual is prohibited by law from possessing a firearm, they dispose of a firearm, rifle or shotgun to such other person.

Definition of Disposing of a Firearm

Under CPL 265.00, the definition of “dispose of” is to dispose of, give, give away, lease, loan, keep for sale, offer, offer for sale, sell, transfer and otherwise dispose of.

Elements of Criminal Purchase or Disposal of a Weapon

Under CPL 265.17, a person is guilty of Criminal Purchase of Disposal of a Weapon when:

Knowing that he or she is prohibited by law from possessing a firearm, rifle or shotgun, because of a prior conviction or another legal reason, such person purchases a firearm, rifle or shotgun from another person; OR
Purchasing a firearm, rifle or shotgun on behalf of another person and knowing that it would be unlawful for this person to possess a firearm, rifle or shotgun, OR
Disposal or a firearm, rifle or shotgun to another person with knowledge that this other person is prohibited by law from possessing a firearm, rifle or shotgun because of a prior conviction or another legal reason.

Penalties for Criminal Purchase or Disposal of a Weapon

Criminal Purchase or Disposal of a Weapon is a Class “D” Violent Felony. Therefore, it is punishable by up to 15 years in jail.

Use of a Firearm

Criminal Use of a Firearm in the Second Degree (PL 265.08)

Criminal Use of a Firearm charges in both First and Second Degree require the commission of an additional charge – either a Class “C” or a Class “B” Violent felony.

Elements of Criminal Use of a Firearm in the Second Degree

Specifically, the elements of Criminal Use of a Firearm in the Second Degree are:

Commission of any Class “C” Violent Felony Offense as defined in CPL 70.02(1)(b); AND
Possession of a deadly weapon, including a loaded weapon from which a shot, capable of causing death or serious physical injury may be discharged; OR
Display of what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

Penalties for Criminal Use of Firearm in the Second Degree

Criminal Use of a Firearm in the Second Degree is a Class C Violent Felony. Therefore, it is punishable by up to 15 years in prison.

Criminal Use of a Firearm in the First Degree (PL 265.09)

Similarly to Criminal Use of a Firearm in the Second Degree, this charge also requires a commission of another violent felony offense. In this situation, a Class “B” violent felony. Specifically, the elements of this charge are:

Commission of any Class “B” Violent Felony Offense as defined in CPL 70.02(1)(a); AND
Possession of a deadly weapon, including a loaded weapon from which a shot, capable of causing death or serious physical injury may be discharged; OR
Display of what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

Penalties for Criminal Use of a Firearm in the First Degree

Criminal Use of a Firearm in the First Degree is a Class “B” violent felony. However, the sentencing on this charge is different from other Class “B” violent felonies. Specifically, on this charge, a Court shall impose an additional sentence of five years to the underlying Class “B” violent felony of which a person stands convicted. However, the Court shall not impose such sentence if it determines to be unduly harsh in light of the history and characteristics of the defendant, and the nature and circumstances of the offense.

Example of Sentencing of Criminal Use of a Firearm in the First Degree

Let’s say Tom is convicted of Assault 1, a Class “B” violent felony for shooting someone and seriously injuring them. The sentencing range on the Assault in the First Degree is 5 to 25 year. Additionally, let’s say Tom is also convicted of Criminal Use of a Firearm in the First Degree. For this charge, the Judge can impost a sentence of 5 years to be served after Tom finishes the sentence for the Assault 1.

Therefore, best case scenario for Tom is being sentenced to 5 years on the Assault 1, and no time on the Criminal Use of a Firearm in the First Degree. That is only able to happen if the judge determines that sentencing to an additional 5 years consecutive is unduly harsh in light of Tom’s personal characteristics and the offense.

However, worst case scenario is the judge sentencing Tom to 25 years on Assault in the First Degree and an additional 5 years on the Criminal Use of a Firearm in the First Degree. Therefore, the maximum that Tom may receive is 30 years on both charges.

Common Defenses to New York Gun Charges

These are some of the common defenses that may be useful to your gun case.

Lack of Knowledge

Many of the gun cases are prosecuted under a legal theory of constructive possession. Constructive possession is a theory of possession of object when a person exercises dominion or control over the place where the object is. For example, under New York law, each occupant of the car has constructive possession over each and every item in the car.

With that being said, just because all occupants of the car can be charged with possessing a gun in the trunk, doesn’t mean that the charge will stick for everyone. Our attorneys have beaten these types of cases by proving that our clients had no knowledge of the gun being in the car.

Successful Defense of a Gun Possession Based on Lack of Knowledge

Although prior case results do not guarantee a similar outcome, we recently obtained an outright dismissal on a Criminal Possession of a Weapon in the Second Degree in Bronx County for a Client. Client was the driver of a vehicle, in which the police found a gun inside a backpack. We persuaded the District Attorney’s Office to dismiss all charges against our client based on lack of knowledge about the gun being inside the car.

Gun Permit from Another State

Although having a gun permit from another state is generally not a defense to New York City gun charges, there is a narrow exception to that. Specifically, possession of a firearm at a New York City Airport. LaGuardia, and John F. Kennedy Airports are both in Queens County. Therefore, Queens County District Attorney’s Office is the prosecuting agency for most, if not all airport gun cases in New York City.

In the event you have a gun permit from another state, as well as a legitimate explanation of why you had the gun with you, our attorneys may be able to obtain a dismissal or a non-criminal disposition on the case.

Successful Defense of a Gun Possession Case Based on Out-of-State Gun Permit

Although prior case results do not guarantee a similar outcome, in 2019, we were able to obtain a disorderly conduct violation for a client, who was stopped at John F. Kennedy Airport trying to fly out of New York back to Virginia with two handguns and ammunition. Our attorneys tirelessly worked on obtaining documentation and letters of support for a persuasive submission to the Queens County District Attorney’s Office. Ultimately, client received a Penal Law 240.20 disorderly conduct violation with a $200 fine, for a case that had a 3.5 year minimum on each gun!

Mistake of Material Fact

Knowledge is a required element of pretty much all gun charges. Mistake of a material fact may be a defense on your gun case. For example, if you believe the gun is a toy, when in fact it is a real gun.

Successful Defense of a Gun Possession Case Based on a Mistake of Material Fact Defense

Although prior case results do not guarantee a similar outcome, in 2018, we obtained a dismissal of a Criminal Possession of a Firearm charge for our client. Our client was a filmmaker who has arrested during the filming of a comedic skit of a robbery gone bad. While the client believed the gun was a prop, it was actually a real and operable handgun. After a meeting with the District Attorney’s Office, we obtained a full dismissal of all charges.

Inoperability of the Gun

One of the requirements of all gun charges is that the gun must be operable. This means that a gun must be able to fire a live round of ammunition. Therefore, you may have a valid defense to your gun case, if the gun is not operable.

Improper Conduct by the Police

Just because you were arrested, doesn’t mean that the police did everything property. The remedy for improper police conduct is the exclusion of evidence from a case, i.e. gun. This is called a suppression. To suppress the evidence in your case, your attorney is able to file motions with the Judge to get a suppression hearing

Issues with a Search Warrant

If the police search your home, place of business or car with a search warrant, you may be able to get the evidence suppressed if there was an issue with a warrant. Common issues with search warrants include:

false testimony provided to the judge to obtain a warrant,
insufficient proof to issue a warrant,
stale (old) observations regarding the contraband being inside the location,
wrong address or wrong apartment number on the affidavit

Contact Us Today to Discuss your New York Gun Charge

As discussed above, gun charges in New York are punishable by significant jail time. Picking a criminal defense attorney with a successful track record of getting these types of cases dismissed or pleaded down to lesser charges, is the single best thing you can do for your case. Hence, the right attorney can make a world of difference for your gun case.

Please call us at 212-729-9494 or contact us today for your free initial consultation.