Firearm, Knives and Weapon Possession Crimes: NY Penal Law Article 265

Possession of a weapon – no matter what type: per se, a dangerous instrument, or a deadly weapon,  you can face significant punishment from state and local authorities. You could go to jail, or suffer other collateral consequences include revoking your professional license or immigration status. Choosing not to challenge a Section 265 case can have long-lasting implications for you and your family. With the help of an attorney with experience in weapon crimes, you can craft a defense tailored to your situation that looks to whether the police violated your constitutional rights and whether the government can use the evidence against you. A criminal conviction for a weapons possession on your record, along with many years behind bars, is exceptionally serious and must be treated seriously.

Definitions and Crimes

Prosecutors across New York State aggressively prosecute crimes involving weapons and other objects that can maim or kill. While each offense differs, the following definitions are helpful.

Deadly Weapon

  • Any loaded weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or mental knuckles. These examples are known as "per se'' weapons.

Dangerous Instrument

  • Any instrument, article or substance, including a vehicle, which, under the circumstances how it is actually, attempted to be, or threatened to be used, is readily capable of causing death or other serious physical injury. Bear in mind that you can violate numerous statutes in one alleged act, which routinely includes a charge of Criminal Possession of a Weapon in the Fourth Degree, Penal Law 265.01, Third Degree, Penal Law 265.02, Second Degree, Penal Law 265.03 and First Degree, Penal Law 265.04

Other crimes related to firearms are Criminal Possession of a Firearm, Penal Law 265.01-b(1), when the gun, revolver or pistol in question is unloaded.

Penalties and Punishment

An arrest or allegation under Penal Law Article 265 or a CPW crime exposes you to the possibility of a year or a steep mandatory minimum and maximum term sentence of seven, fifteen, and even twenty-five years. The idea of spending even the slightest amount of time in Rikers Island should be enough for you to reach out to a criminal defense attorney to protect you against these accusations.

Always keep in mind that if the statute defines the crime as a violent felony under Penal Law 70.02, no judge can seal your conviction, regardless of how long you remain free and seek to rectify your past transgressions.

New York Gun Charges

New York prosecutes firearm and gun crimes zealously and has some of the strictest possession laws in the country. New York treats these types of cases the same way it looks at violent assault and robbery crimes, meaning a potential conviction can have significant ramifications on your life. Thus, you must call legal counsel if you face a gun charge in New York as soon as possible to start preparing your defense.

Severity of Gun Charges

Even though the Second Amendment recognizes your right to bear arms, such freedom does not come without limitations. New York law requires you to have a license or permit to carry a firearm in the state. Carrying a gun without either of these things can lead you to state prison, facing a mandatory sentence even if you are a first-time offender.

Law enforcement and legislators take gun possession issues very seriously, given New York's highly populated areas, like Midtown and Time Square. Similarly, having more guns on the street can lead to more crime, which could have negative consequences. Suppose a person has a loaded firearm outside of their home and place of business, and that pistol, revolver, assault rifle, or similar weapon is loaded. In that case, they should expect the full force of a violent felony prosecution by the local District Attorney's Office.

Legality of Hunting in New York

Like carrying a firearm, New York permits hunting for those with proper permits. Long arms are not regulated and defined the same way as firearms. This distinction does not derive from the gun's caliber. Instead, the size, type, and nature of the firearm generally fill this gap. Importantly, just because you are hunting does not make the gun charge any less severe, since the nature and type and use of the gun makes it a felony.

Transporting Firearms Through New York

New York State and City makes it unlawful for a person to carry, possess, or transport a handgun, pistol, or any other firearm without a permit. Prosecutors commonly prosecute people for transporting firearms, an act that is illegal for someone to travel throughout the state with their firearm. It is crucial to note that New York does not recognize reciprocity. While there are laws on the books protecting certain people in transit, they lack universal applicability and are strict, meaning police can still arrest you even if the charges eventually get dropped months later.

Felony Charges

Spending a night in New York while traveling to another state violates the law. When someone visits New York from Pennsylvania, Virginia, or any state and decides to spend the evening in New York City or Rochester with a loaded firearm in their car, hotel, apartment or friend's home, they face a class "C" violent felony. In the event the weapon is unloaded, the crime is a class "E" felony of Criminal Possession of a Firearm, as opposed to the more severe Second Degree Criminal Possession of a Weapon. Always keep in mind that the law's definition of "loaded" is quite different than the term's literal use. Even if the gun is unloaded, the state considers the weapon loaded if it is close to bullets and ammunition.

Transporting Ammunition and Firearms

When in New York, it is helpful to keep your firearm locked up and away from any ammunition. Bear in mind that even if you are merely traveling and stopped by the police, there is still a possibility that prosecutors will initiate an investigation of the incident.

Overall, if the firearm is readily accessible with ammunition nearby, it is a class "C" violent felony if you lack a license in New York. Even though you might have a license or permit in another state, New York does not consider that sufficient. The information above is designed to provide information to those in a non-stop transit setting, though it can also serve those seeking to mitigate conduct. Reach out to an experienced gun lawyer today for more information.

New York City and State Gun Lawyer

NNew York City and State heavily regulate the possession, sale, transfer, and manufacturing of firearms, making their laws some of the toughest in the country. It is not uncommon for someone arrested and charged with a gun-related offense to face a lengthy and severe prison sentence. Even if you avoid going to prison, there are still significant ramifications that can affect your employment, professional licenses, and certifications, and for some, immigration status.

While some might think that the Second Amendment protects them from any gun-related charges, they are mistaken. Regardless of the weapon you possessed, the offense is quite severe and calls for retaining legal counsel to answer your questions and craft a vigorous defense minimizing your involvement with the criminal justice system. Challenging the charges provides you with a sense of comfort, knowing that someone is advocating on your behalf and working to ensure your future is secure.

New York Gun Laws: Strict Enforcement

New York State Penal Law Section 265 provides the definition of what precisely a firearm is under the law. This definition continues to evolve to include:

  • Pistol or revolver
  • Certain shotguns
  • Certain rifles
  • Modified shotguns and rifles
  • Assault weapons

Also included in this part of the code are New York's possession laws and their various crimes. Common gun charges include:

  • Criminal Possession of a Firearm
  • Criminal possession of a Weapon on School Grounds
  • Unlawful Possession of Weapons by a Person Under the Age of 16
  • Criminal Possession of a Dangerous Weapon
  • Criminal Sale of a Firearm
  • Criminal Sale of a Firearm with the Aid of a Minor
  • Criminal sale of a Firearm to a Minor
  • Criminal Purchase or Disposal of a Firearm
  • Criminal Use of a Firearm

If you experienced arrest for a weapons charge or an Appearance or Desk Appearance Ticket for a lower level offense, having to address the allegation is likely to cause you a great deal of angst. The possibility of imprisonment is enough to impact your personal and professional life negatively.

Potential Penalties: From Bad to Frighteningly Worse

Along with its reputation for strict gun laws, New York has a reputation for imposing harsh penalties. It is not uncommon to find under New York law mandatory prison sentences for first time offenders and those with a history of unlawful possession. Here are some possible sentences:

  • Prison sentences: Dependent upon the severity, whether it is a misdemeanor or a Class B felony. Regardless of whether you had an out-of-state permit, if you have a loaded firearm, a judge must sentence you to a minimum of three and a half years to a maximum of fifteen years upon conviction. Depending on the particular offense and degree, you could face a sentence up to one year in jail for "lower" misdemeanors and up to 25 years for a Class B felony.
  • Fines:Prosecutors can ask the judge to impose steep fines for gun charges. Class A misdemeanor convictions can come with a fine of up to $1,000, and those convicted of more severe crimes, like a Class B felony, can face an even greater sum.

Along with a gun charge comes a stigma that can lead to denial of jobs, visa status and deportation, and of course, the association with a criminal record.

Your Defense, Your Life, Your Future

Penal Law Article 265 is unique in its enforcement and mandate of incarceration, regardless of whether you were traveling out-of-state in a car, an airport, or train, and even if you have an out-of-state license. Experienced legal counsel can work to provide you with answers to your questions and concerns and help craft a strategy that respects your livelihood and defends your rights.

Gun Laws in New York

With New York's everchanging gun legislation, an experienced gun lawyer can properly ensure that your rights are protected. The law makes clear that individuals cannot possess a loaded or unloaded firearm in the state unless they have a license and permit. New York law mandates incarceration when a person possesses an unregistered or unlicensed firearm in the state, making it amongst the strictest firearm laws in the country.

Common Firearm Law Misconceptions

While information provided by the TSA and airlines are helpful, individuals need to ensure they know the law of the visiting state. Just because one has a license to carry in Oklahoma does not mean that it governs in New York. This is where people find themselves involved with the criminal justice system and fearing for their careers, family, and future.

Gathering Legal Information

As noted, consider all the resources available to you about gun laws before traveling to New York. Do not simply rely on TSA regulations. They should take some time to learn about New York's gun laws and the possible charges they can face.

Impact of Local Firearm Laws

New York's gun laws are not only specific but diverse. Possession of a stolen firearm is a crime, as is a defaced firearm. Possessing a loaded firearm without a license or permit outside one's home or business is a crime. When faced with a New York gun charge, the excuse of not knowing it was against the law falls short given the law's specificity and clarity. Oftentimes people think they are acting within the confines of the law but are mistaken. People who secure or use firearms illegally do not necessarily fall within this group. Having experienced counsel who know the inner-workings of the criminal justice system and the evolving nature of gun crimes can help you present a strong defense against any charges.

Likelihood of Reciprocity Regarding Concealed Carry

New York does not recognize reciprocity with gun laws, meaning to possess a firearm in the state, one needs a license or permit. While some Federal legislation provides for temporary possession relative to transporting through the state and for law enforcement, there are no other exceptions to the rule.

One can argue that if they have a license to carry in their home state and are traveling within New York to go back home, their firearm possession in New York is legal. Keep in mind that this is just one argument, and upon arrest, no District Attorney or judge needs to take their word about what happened. Regardless, the likelihood that the District Attorney will conduct its own investigation is high, meaning you should know the laws of the state you wish to carry your firearm in to avoid any consequences.

Moving to New York

As noted, an individual cannot bring their firearm to New York unless they are licensed in the city or state. One's firearm possession must align with the license's parameters. In the event you face a gun charge and did not know you violated the law, it is best to address the issue rather than risk arrest and future prosecution. If one wishes to dispose or sell their gun, they should speak to an attorney who can outline next steps to ensure the gun's relinquishment aligns with the law.

Consulting with an Attorney

Given the complexity of New York's gun laws, it is best for one to consult an experienced attorney to avoid making any life-altering mistakes that could come with a prison sentence and loss of a job.

Common New York Gun Offenses

Among New York’s most common gun offenses are second-degree criminal possession and a class C violent felony because courts consider them violent crimes per statute. Before heading to trial, contacting a criminal defense attorney can provide you with the advice you need to secure a more favorable outcome.

There is a mandatory term of imprisonment for first-time offenders, ranging from three and a half years (minimum) to 15 years plus. For those with a prior felony in the past ten years, the minimum increases to five years.

Impact of an Individual's Record

One's past can potentially impact one's sentence. For example, if the individual has a violent felony conviction, the minimum jumps to seven years. New York could deem the firearm loaded if the person's unloaded gun is near ammunition, resulting in a violent felony charge for

Role of Intent to Use

The law does not require New York prosecutors to establish that a person intended to use the firearm unlawfully against another person. Regardless of how one came about the gun, if the person had the gun outside their home or place of business and lack the requisite permit, they run the risk of felony charges.

Risks of Traveling With a Firearm

Even if one has a lawfully registered firearm in their home state and happens to travel to New York, the state does not have reciprocity, meaning it will not recognize that home state permit. Similarly, while some think that because their airline and the TSA approved them carrying a gun, New York's criminal laws do not recognize such approval.

If one chooses to declare a firearm, the Port Authority Police Department likely will arrest and transport them to Central Booking in Queens for criminal processing. Choosing not to report might lead to similar consequences. Overall, airport gun crimes are strictly enforced in New York City, leading to stiff charges and rigorous prosecutions.

Defining Criminal Possession of a Firearm

Another common offense in New York is Penal Law 265.01-b (1); Criminal Possession of a Firearm, similar to Criminal Possession of a Weapon, but with one distinct difference. Under New York's SAFE Act, having a firearm, even if unloaded, outside one's home or place of business is a class "E" felony.

Types of Gun Charges

Previously, New York classified possessing an unlicensed or improperly registered firearm outside one's home or place of business as a misdemeanor. Today, such a violation is a felony and punishable by up to four years in state prison.

Other firearm crimes include:

  • Misdemeanor fourth-degree criminal possession of a weapon
  • Felony criminal possession of a weapon in the first, second, and third-degree

New York gun offenses, including felony charges, stay with someone forever. Since criminal possession of a firearm covers a vast array of scenarios, like mere possession of an unloaded weapon, one can face serious charges.

New York Concealed Carry Ordinances

New York's handgun licensure requirements differ and recognize one's ability to possess an appropriately licensed or permitted firearm in their dwelling or place of business.

Not all licenses allow the unrestricted concealed carrying of a firearm. The license must identify whether the person can carry the firearm on their person or at a specific location such as a home or business. It is the State of New York and City of New York that dictates the law as opposed to local ordinances.

However, not all licenses allow unrestricted concealment of a firearm. The license or permit should reflect whether one can carry the firearm on their person or at a specific location.

Role of Counsel

A person suspected or charged with a gun offense must contact well-informed legal counsel who can investigate, and if needed, challenge the basis for a stop or search, the legal claims involved, and ultimately look at the evidence against you to craft a strong defense.

Note that it is not uncommon for a law-abiding citizen to violate one of New York's strict gun laws unknowingly. Not everyone caught up in a firearm charge is a harmful or dangerous person. Let an experienced former District Attorney like Peter Katz make this distinction and protect your interests today.

New York Gun Penalties

A Class E felony for criminal possession of a firearm in New York carries a penalty of up to four years in prison. Similarly, third-degree criminal possession imposes a sentence of up to seven years in prison, with a two-year presumptive minimum.

Merely possessing a firearm without the intent to use it is a class "C" violent felony with a mandatory minimum of three and a half years in prison. A sentence of up to 15 years is a possibility under this offense.

Keep in mind that every firearm in New York comes with a potential prison sentence. More severe crimes mandate incarceration. Contact a seasoned attorney today to start building your defense.

Repercussions of Felony Conviction

One cannot seek to have a felony removed from their record. While New York Criminal Procedure Law 160.59 offers opportunities to seal some crimes, The law deems most gun and firearm offenses “violent,” rendering them ineligible from sealing.

For example, say a person travels with their Texas licensed firearm and gets convicted of Criminal Possession of a Weapon in the Second degree for unlawfully possessing the firearm in Midtown. This conviction will forever stay on that person’s background check, regardless of whether the other state properly licensed the gun.

If a person is convicted of a violent crime such as Criminal Possession of a Weapon in the Second Degree for unlawfully possessing a loaded firearm in midtown Manhattan that is legally owned and registered in Texas, not realizing it is against the law to have in New York, the conviction for this crime can never be sealed. It will show up in background checks.

Penalties deriving from such a conviction can include losing the right to vote, a ban on future firearm purchases and welfare benefits, denial of federal housing, and a relinquishment and ban from employment licenses. The categorization of the offense as violent is significant and can directly affect one's livelihood.

The Prosecutor's Role

Prosecutors treat gun offenses seriously and, for the most part, do not show sympathy when someone unlawfully possesses a firearm.

After arrest, authorities will run an ATF report and see whether the firearm in question was used in a crime or stolen. A vital part of this is matching up the person carrying the gun with its serial number.

Law Enforcement and Prosecutors

Law enforcement is interested in looking at the license and where someone purchased the gun. Also important is how long the person had the firearm in New York and its storage while traveling through the state or visiting.

Prosecutors are lasered in on the law and do not accept ignorance of the law as justification for breaking the law. Though in the event someone inspected your firearm per TSA guidelines and the law before facing law enforcement, District Attorneys are more willing to alternative resolutions.

Importance of Hiring Legal Counsel

The lawyer's role as an advocate can have significant advantages when combatting firearm charges. Not only can a lawyer help answer questions that one might have, but also begin preparing a defense that looks at whether law enforcement executed a proper search, whether the prosecutor's facts about the gun, its whereabouts, and what happened are accurate. The most severe penalty is a class "B" felony and carries a mandatory minimum of five years imprisonment for first-time offenders and a maximum sentence of 25-years.

Knowing their client’s future is at risk, experienced attorneys focus on ensuring their rights and future remain protected.