Criminal Use of a Firearm in New York

Criminal Use of a Firearm in the Second Degree

Criminal Use of a Firearm in the Second Degree, Penal Law Section 265.08, involves an allegation of a crime categorized as a class C violent felony and 2 additional circumstances. The crime is a class C violent felony which requires a mandatory minimum prison sentence,

Criminal Use of a Firearm in the Second Degree states: A person is guilty of criminal use of a firearm in the second degree when he or she commits any class C violent felony offense and he or she either:

Possesses a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged; or Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

In addition, a charge of an attempt to commit a class B violent felony results in a class C violent felony. There are approximately 20 additional crimes that are categorized as a class B violent felony.

Sentences for Criminal Use of a Firearm in the Second Degree

Criminal Use of a Firearm in the Second Degree in the First Degree is a class C violent felony. A conviction carries a mandatory minimum prison sentence of 3.5 years and a maximum prison sentence of 15 years if a person does not have a prior felony conviction. In addition, there is an additional period of post-release supervision of between 2 ½ and 5 years.

Criminal Use of a Firearm in the First Degree

Criminal Use of a Firearm in the First Degree, Penal Law Section 265.09, involves an allegation of a crime categorized as a class C felony and 2 additional circumstances. The crime is a class B violent felony, which requires a mandatory minimum prison sentence in addition to a sentence imposed for a related offense.

Criminal Use of a Firearm in the First Degree states: A person is guilty of criminal use of a firearm in the second degree when he or she commits any class B violent felony offense and he or she either:

Possesses a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged; or
Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

In addition, a charge of an attempt to commit a class A violent felony results in a class B violent felony. There are nearly 20 additional crimes that are categorized as a class A violent felony.

Criminal Use of a Firearm in the First Degree Sentencing

Criminal Use of a Firearm in the First Degree in the First Degree is classified as a class B violent felony. A conviction carries a mandatory minimum prison sentence of 5 years and a maximum prison sentence of 25 years if a person does not have a prior felony conviction.

In addition, if a person is convicted for displaying a leaded and operable firearm, then a Judge is required to impose an additional 5-year sentence to run consecutively with the sentence for the underlying class B violent felony that the Criminal Use of a Firearm in the First Degree charge is based upon.

A Judge does not have to impose the additional 5-year consecutive sentence if there is a finding that the additional prison term would be unduly harsh and consistent with public safety in light of the nature and circumstances of the firearms charge and to the history and character of the person charged. Finally, it is also an additional period of post-release supervision of between 2 ½ and 5 years.

Prohibited Use of Weapons

In New York, Prohibited Use of Weapons, Penal Law Section 265.35(2) is either a class D or class E felony.

Prohibited Use of Weapons as a class E felony is charged when: Any person who willfully discharges a loaded firearm or any other gun, the propelling force of which is gunpowder, at an aircraft while such aircraft is in motion in the air or in motion or stationary upon the ground, or at any railway or street railroad train or at a locomotive, car, bus or vehicle standing or moving upon such railway, railroad or public highway.

Prohibited Use of Weapons as a class D felony is charged when the above is alleged and the safety of any person is endangered.

Notably, the law only applies to aircraft, trains, cars and busses, when stationary or in motion. Prohibited Use of Weapons also requires a loaded firearm to be discharged at any aircraft, train, car and bus. In other words, it is not enough to charge a person with Prohibited Use of Weapons if the firearm is fired near any of the modes of transportation, it has to be fired at one of them.

Prohibited Use of Weapons, when charged, is also charged with such other crimes as Criminal Possession of a Weapon in the Second Degree, Homicide or an attempted Homicide, Assault in the First or Second Degrees, or an attempt, or Reckless Endangerment.

Prohibited Use of Weapons is rarely charged in New York because of the associated state crimes, as well, as the federal crimes carry a more severe punishment.

Prohibited Use of Weapons Sentencing

In New York, Prohibited Use of Weapons is either a class D violent of class E felony depending on the allegations. Both are non-violent felonies and a mandatory minimum prison sentence does not apply.

The minimum prison sentence for the class E felony is 1 to 3 years in prison and the maximum is 1 1/3 to 4 years. The minimum prison sentence for the class D felony is also 1 to 3 years in prison and the maximum is 2 1/3 to 7 years.

Both sentencing categories allow for a sentence of 1 year in prison if, based on the nature and circumstances of the firearms charge and to the history and character of the person charged, a longer term would be unduly harsh.

Other possible sentences for Prohibited Use of Weapons include a 3-year conditional discharge upon a finding that probation supervision is not appropriate and the circumstances warrant release. In addition, a Judge has the option of sentencing a person to 3, 4 or 5 years probation or a split sentence of up to 6 months in prison and 5 years probation.