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What is Criminal Possession of a Gun in New York?

The most common firearms charge in New York and New York City involve the alleged possession of a firearm, to be specific, Criminal Possession of a Weapon in the Second Degree. If a person is allegedly caught by police with a gun, without a license to possess the firearm, which also includes rifles and shotguns, then the exact New York firearms charge will depend on several factors.

Some of those factors include the location, whether outside of a home or place of business, in a car, whether the firearm was used in the alleged commission of another crime. Many gun charges in New York are punished by a mandatory minimum prison sentence.

Specific NYC Gun Possession Crimes

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Illegal Searches and Gun Charges in NYC

Firearms charges often are allegedly recovered by police as the result of an illegal search and seizure. Under the constitution of the United States and the New York State constitution, a person cannot be searched because police merely feel like searching a person.

Best Gun Lawyer in NYCPolice must have a certain level of suspicion based on alleged facts that be described before they can pat down a person for weapons or fully search a person. The law of search and seizure relating to weapons such as firearms is highly fact specific.

As with all other cases where property is allegedly recovered from a person by police, a person charged with alleged possession of a firearm has an opportunity to challenge to search and seizure. The challenge to the search and seizure of a firearm takes place before a trial and known as a combined Mapp and Dunaway hearing. During the Mapp / Dunaway hearing, the prosecutor has the burden of going forward with credible evidence tending to show that the police officers acted lawfully, and a defendant has the burden of proving by a preponderance of the evidence that the officers acted illegally.

If a defense attorney is able to show that the prosecutor did not offer credible evidence that police acted legally or a defense attorney is able to rebut a prosecutor’s credible evidence to show that police acted illegally, then the firearm will be suppressed.

The legal concept is known as the fruit of the poisonous tree. In that event, if a firearm is the basis for the weapons charges then the case should be dismissed. If there are additional charges that do not relate to the alleged possession of a firearm, then the case could continue without those charges. However, if a police officer was found not credible by a judge then it is not uncommon for the remaining charges to be dismissed.

Firearms Automobile and Home Presumptions in New York

New York has a presumption written into the law for firearms and weapons in general that a found in an automobile. Under Penal Law Section 265.15(3), Presumptions of possession, unlawful intent and defacement, if a firearm is found in a car then there is a presumption that all people in the car possess the firearm. Does that make sense? Of course not! But, that’s what the law says. There are three exceptions to the automobile firearm presumption.

First, if the firearm (or other weapon) “is found upon the person of one of the occupants.” Second, the presumption does not apply to on-duty for-hire drivers such as taxi, Uber or Lyft drivers. Third, if one person in the car has a valid firearm license.

It is not uncommon to overcome the automobile firearm presumption. The presumption means that a judge or jury, may, but is not required to, infer that a person charged possessed a firearm found in a car.

The decision to make that inference depends entirely on the evidence. The two most important factors in determining if the automobile firearm presumption is applied are if the gun was found in an open or closed space (such as a glove compartment or center console) and the distance between the person charged with firearms possession and the location of the firearm.

Another firearms-related presumption in New York law involves homes and machine guns. Under Penal Law Section 265.15(1), if a machine gun is found in any home, apartment or room there is a presumption that all people occupying the space possess the machine gun.

The term machine gun is defined broadly to include any loaded or unloaded weapon that can rapidly discharge bullets with one continuous pull of the trigger.

The strength or weakness of the presumption depends on factors that are similar to the automobile firearm presumption. The particular location that the machine gun was found and the distance from the person who is charged with its possession.

Gun Possession and New York Orders of Protection

When a person is charged with certain crimes in New York such as Assault or Domestic Violence, a Court will typically issue an Order of Protection. In most cases, the Order of Protection is full as opposed to limited. One of the requirements of an Order of Protection is to surrender all firearms by a certain date and time usually to a local police precinct, police station or police barracks. Failure to surrender a firearm, if directed to do so by an Order of Protection, could lead to charges of Criminal Contempt.

The Order of Protection, when one is issued, will usually be in effect during the pendency of a criminal case. During a case, the Order of Protection will be called temporary and it will usually expire in 6 months, to be extended for 6 months when and if it expires. Unless a case is dismissed outright, an Order of Protection could be part of the disposition of a criminal case.

The following terms apply Orders of Protection:

  • 6 Months: Adjournment in Contemplation of Dismissal (ACD Non-Family Offense)
  • 1 Year: Family Adjournment in Contemplation of Dismissal (FACD)
  • 2 Years: Violation (Disorderly Conduct or Harassment in the Second Degree
  • 5 Years: Misdemeanor
  • 8 to 10 Years: Felony (and indelibility to own a firearm).
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Airport Gun Charges in Queens Airports and New York

The patchwork of firearms laws throughout the country may be confusing. As noted above, firearms restrictions vary from state to state. A common firearms charge in New York is when non-New York residents who own legally own and possess a firearm in their home state arrive in New York in possession of their firearm. There are generally two types of such cases. First, people who fly from other states into airports throughout New York, most commonly John. F. Kenney Airport and LaGuardia Airport. Second, residents of other states who drive into New York from other states with a firearm in their car.

Two firearms charges may apply in those circumstances. First, Criminal Possession of a Firearm, Penal Law Section 265.01-b, which states: “A person is guilty of criminal possession of a firearm when he or she possesses any firearm or. Second, Criminal Possession of a Weapon in the Second Degree, Penal Law Section 265.03(3): “A person is guilty of criminal possession of a weapon in the second degree when such person possesses any loaded firearm [outside of] such person’s home or place of business.” Both laws require possession, but the possession must be knowing.

The term knowingly is defined in Penal Law Section 15.05(s) as an awareness of a particular conduct. Therefore, it is a defense that a non-New York citizen who lawfully possesses a firearm in his or her own home state entered New York without the knowledge that he or she possessed a firearm.

There are plenty of reasons that a person would forget that he or she possesses a firearm when the firearm laws of their home state are not nearly as restrictive as they are in New York. Whether or not a person knowingly possesses a firearm is a question for either a judge or a jury. The instruction is given at trial regarding the meaning of knowingly is:

“The question naturally arises as to how to determine whether a person had the knowledge, that is, the awareness, required for the commission of a crime. To make that determination, you must decide if the required knowledge can be inferred beyond a reasonable doubt from the proven facts. In doing so, you may consider the person’s conduct and all of the circumstances surrounding that conduct, including, but not limited to, what, if anything, did that person do or say.”

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Assault Weapon Charges in New York

In 2013, New York passed the New York Secure Ammunition and Firearms Enforcement Act or SAFE Act. Among many other restrictions, the SAFE Act banned the possession, manufacture or transport of an assault weapon in New York. Under the law an assault weapon is defined in Penal Law Section 265.00(22) as a semiautomatic rifle that can accept a detachable magazine and has at least one of the following characteristics:

  • A folding or telescoping stock;
  • A pistol grip that protrudes conspicuously beneath the action of the weapon;
  • A thumbhole stock;
  • A second handgrip or a protruding grip that can be held by the non-trigger hand;
  • A bayonet mount;
  • A flash suppressor, muzzle brake, muzzle compensator, or threaded barrel designed to accommodate a flash suppressor, muzzle brake, or muzzle compensator; or
  • A grenade launcher

The definition of an assault weapon in New York also includes semi-automatic shotguns with certain characteristics, semi-automatic pistols with detachable magazines and and several other types of firearms with certain characteristics. Many guns used for hunting such as any pump, lever, or bolt action rifle or shotgun are legal and not considered assault weapons under the SAFE Act.

Criminal Possession of a Weapon in the Fourth Degree

Criminal Possession of a Weapon in the Fourth Degree, Penal Law Section 265.01, is the only firearms charge in New York that is a misdemeanor.

If a person is arrested for possessing a firearm in New York, then he or she will likely be charged with one of the degrees of felony possession such as Criminal Possession of a Firearm, Criminal Possession of a Weapon in the Third Degree or Criminal Possession of a Weapon in the Second Degree. Nevertheless, there are 4 circumstances under which a person could be charged for possession of a firearm and 2 circumstances under which a person could be charged for banned ammunition.

Criminal Possession of a Weapon in the Fourth Degree could be charged for possession of:

  • Any firearm;
  • A rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm and the person has been convicted of a felony;
  • Any firearm (or dangerous or deadly weapon) and the person is not a U.S. citizen; or
  • A rifle of shotgun and the person has been certified to the police as judicially adjudicated incompetent, or who has been confined to an institution for mental illness under judicial authority.

In addition, a person can be charged with Criminal Possession of a Weapon in the Fourth Degree under 2 circumstances related to ammunition, for:

  • Knowingly possessing a bullet containing an explosive substance designed to detonate upon impact; or
  • Possessing any armor-piercing ammunition with intent to use the same unlawfully against another.

As noted above, firearms charges in New York tend to be charged as a felony.

Sentencing for Criminal Possession of a Weapon in the Fourth Degree

Possession of a Gun Attorney in New YorkAs a class A misdemeanor, Criminal Possession of a Weapon in the Fourth Degree, carries a possible penalty of up to 1 year in jail. For many crimes that are classified as a misdemeanor in New York an aggressive and experienced defense attorney is often able to obtain a non-criminal plea bargain or even a dismissal.

Two common outcomes in Criminal Possession of a Weapon in the Fourth Degree cases are an Adjournment in Contemplation of Dismissal (ACD) and Disorderly Conduct. An ACD is what it sounds like, a 6-month adjournment of a case and if a person charged stays out of trouble, then the case is dismissed and sealed on the next court date without requiring anybody to appear. In New York, Disorderly Conduct is a violation and not a crime. Thus, a plea bargain to Disorderly Conduct is not a crime. If a person who pleads to Disorderly Conduct is asked if they have a criminal record, then the answer is no (based on that plea alone).

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Criminal Possession of a Gun in NYC

Criminal Possession of a Firearm was enacted in 2013 as part of New York’s Secure Ammunition and Firearms Enforcement Act. Penal Law Section 265.01-b, Criminal Possession of a Firearm is charged in 2 circumstances. The law states: A person is guilty of criminal possession of a firearm when he or she:

  • Possesses any firearm or:
  • Lawfully possesses a firearm before the SAFE Act and knowingly failed to register the firearm by April 14, 2014.

The most common firearms charge in New York is Criminal Possession of a Weapon in the Second Degree for a loaded handgun outside of one’s home or place of business. In that event, the Criminal Possession of a Weapon will also be charged. However, unlike the Second Degree firearms charge, which is a class C violent felony that carries a minimum prison sentence of 3.5, years, Criminal Possession of a Weapon is a class E felony, which is a much lower sentencing category.

The second provision of Criminal Possession of a Firearm requires registration of certain firearms under New York’s Secure Ammunition and Firearms Enforcement Act or SAFE Act. Under the law, owners were required to register certain firearms by April 14, 2014. On important defense to failure to register an eligible firearm under the SAFE Act is that the firearm was rendered permanently inoperable, incapable of discharging ammunition forever.

Arrests and prosecutions for failure to register a firearm under the Criminal Possession of a Firearm provisions are most frequently in upstate and western New York. The SAFE Act requires registration of certain semi-automatic pistols, rifles and shotguns that are considered assault weapons. Firearms commonly used for hunting in New York, such as bolt action rifles and shotguns are not considered an assault weapon and do not require registration.

If the pistol, rifle or shotgun is not semi-automatic and does not have a detachable magazine, then it probably does not require registration. However, pistols, rifles and shotguns that are semi-automatic, have a detachable magazine and certain specific characteristics like a folding or thumbhole stock, a second handgrip held by the non-trigger hand and a conspicuous pistol grip, are likely required to be registered. New York State mainlines a helpful website that explains which firearms are required to be registered under the SAFE Act.

Sentencing for Criminal Possession of a Firearm

Criminal Possession of a Firearm is a class E felony. The firearms charge is the least severe of all felony firearms charges in New York. Prison is not mandatory for convictions of Criminal Possession of a Firearm and there are a wide range of sentencing options.

The maximum sentence is 1 1/3 to 4 years and the minimum is 1 to 3 years. However, a Judge can sentence a person convicted of Criminal Possession of a Firearm to 1 year in jail if there is a finding that a longer sentence would be unduly harsh based on the nature and circumstances of the allegations and the history and character of the person charged. Other sentencing options include a conditional discharge, up to 5 years probation and a split sentence of up to 6 months in jail and 5 years probation.

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Criminal Possession of a Weapon on School Grounds

In 2013, under the state’s Secure Ammunition and Firearms Enforcement Act or Safe Act, New York elevated the punishment for Criminal Possession of a Weapon on School Grounds.

Before 2013, Criminal Possession of a Weapon on School Grounds was punished as a class A misdemeanor under Penal Law Section 265.01(3). The change in law moved Criminal Possession of a Weapon on School Grounds to Penal Law Section 265.01-a and made the firearms charge a class E felony.

Criminal Possession of a Weapon on School Grounds may be charged when a person knowingly possesses a rifle, shotgun or firearm on school grounds or on a school bus without written authorization.

Under the law, the term school grounds is defined broadly to include any school, college or university (except the SUNY college of environmental science and forestry) and any private- or publicly owned school bus that transports students or teachers to or from school or school actives.

When a person is arrested for Criminal Possession of a Weapon on School Grounds there are commonly additional charges including Criminal Possession of a Firearm and/or Criminal Possession of a Weapon in the Second Degree.

Sentencing for Criminal Possession of a Weapon on School Grounds

Since 2013, Criminal Possession of a Weapon on School Grounds has been classified as a class E felony. The maximum sentence for a conviction is 1 1/3 to 4 years and the minimum is 1 to 3 years. But, prison is not required in sentencing. A Judge has the option of sentencing a person convicted of Criminal Possession of a Weapon on School Grounds to 1 year if a Judge finds that based on the nature and circumstances of the allegations and the history and character of the person charged a longer sentence would be unduly harsh. Some other options for sentencing include a conditional discharge, up to 5 years probation and a split sentence of up to 6 months in jail and 5 years probation.

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Criminal Possession of a Weapon in the Third Degree

Criminal Possession of a Weapon in the Third Degree, Penal Law Section 265.03, is a class D felony. The broad firearms charge has 11 different provisions.

Most of the ways the types of charges under Criminal Possession of a Weapon in the Third Degree are classified as a violent felony. Only a few provisions of Criminal Possession of a Weapon in the Third Degree are not considered a violent felony offense.

Criminal Possession of a Weapon in the Third Degree is charged if a person:

  • Commits the crime of Criminal Possession of a Weapon in the Fourth Degree, Penal Law Section 265.01, has a previous conviction of any crime and for possessing a firearm, any weapon with the intent to use the weapon unlawfully against another person, a rifle or shotgun with a previous felony conviction or a firearm and is not a United States citizen;
  • Possesses 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;
  • Possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun;
  • Possesses 3 or more firearms;
  • Possesses a firearm and has been previously convicted of a firearms- or weapons-related felony or a class A misdemeanor within the past 5 years immediately and the possession did not take place in the person’s home or place of business;
  • Knowingly possesses any disguised gun;
  • Possesses an assault weapon;
  • Possesses a large capacity ammunition feeding device;
  • Possesses an unloaded firearm and also commits a drug trafficking felony as part of the same criminal transaction; or
  • Possesses an unloaded firearm and also commits any violent felony offense as part of the same criminal transaction.

Sentencing for Criminal Possession of a Weapon in the Third Degree

The 3 circumstances where Criminal Possession of a Weapon in the Third Degree is a class D non-violent felony, are when the firearms charge is based on a previous conviction, possession of an explosive or incendiary bomb, etc. and possession of a machine-gun, firearm, rifle or shotgun that is defaced for the purpose of concealment. Prison is not required for a conviction under these circumstances. The maximum prison sentence is 2 1/3 to 7 years and the minimum is 1 to 3 years for a first felony offense.

A Judge also has the option to sentence a person to 1 year in prison if there is finding that a longer term would be unduly harsh due to the nature and circumstances of the firearms charge and to the history and character of the person charged. Another possible sentence for the class D non-violent felony is a split sentence of up to 6 months in prison and 5 years probation.

Two non-prison sentences include up to 5 years probation and a 3-year conditional discharge. To sentence a person to probation a Judge must find that a term in prison is not necessary to protect the public, the person charged needs training or other assistance that can be administered by the Department of Probation and probation is not inconsistent with the ends of justice.

For the remaining 8 circumstances of Criminal Possession of a Weapon in the Third Degree, the class D felony is treated as a violent felony offense. The maximum prison sentence is 7 years in prison and the minimum is 2 years. In addition, a period of post-release supervision between 1 ½ and 3 years is required. There are additional sentencing options that are similar to the class D non-violent felony.

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Criminal Possession of a Weapon in the Second Degree

New York Gun PossessionCriminal Possession of a Weapon in the Second Degree, Penal Law Section 265.02, is a class C violent felony. Criminal Possession of a Weapon in the Second Degree is the most commonly charged firearm charge in New York for the alleged possession of a loaded handgun outside one’s home or place of business.

Criminal Possession of a Weapon in the Second Degree is charged when a person possesses:

  • A loaded firearm outside of one’s home or place of business;
  • A loaded firearm, machine gun or disguised gun with the intent to use it unlawfully against another person; or
  • 5 or more firearms

The term machine gun is defined as a loaded or unleaded weapon of any size “from which a number of shots or bullets may be rapidly or automatically discharged from a magazine with one continuous pull of the trigger and includes a sub-machine gun.”

The term disguised gun is defined as “any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive and is designed and intended to appear to be something other than a gun.”

Sentencing 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. A conviction of the firearms charge 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.

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Criminal Possession of a Dangerous Weapon in the First Degree

Criminal Possession of a Weapon in the First Degree, Penal Law Section 265.04 is the most serious firearms charge in New York.

However, the law does not apply to the possession of a single firearm. The firearms charge is a class B violent felony.

Criminal Possession of a Dangerous Weapon in the First Degree is charged when a person possesses: 

  • Any explosive substance with intent to the explosive substance unlawfully against the person or property of another; or
  • 10 or more firearms.

The term explosive substance is not defined in New York State law. Courts have held that the term is the everyday common sense meaning and that the essence of the term is something that is capable of exploding and causing death or injury to person or property.

Criminal Possession of a Dangerous Weapon in the First Degree Sentencing

Criminal Possession of a Dangerous Weapon in the First Degree is a class B violent felony. A conviction of the firearms charge 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, there is an additional period of post-release supervision of between 2 ½ and 5 years.

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Aggravated Criminal Possession of a Weapon in NYC

Aggravated Criminal Possession of a Weapon, Penal Law Section 265.19, is related to Criminal Possession of Weapon in the Second Degree when outside of one’s home or place of business.

Under the law, a person is guilty of Aggravated Criminal Possession of a Weapon when he or she commits the firearms charge of Criminal Possession of a Weapon for a firearm outside of one’s home or place of business and also commits:

  • Any violent felony offense; or
  • A drug trafficking felony

Thus, to charge Aggravated Criminal Possession of a Weapon in New York there must be charges related to the alleged commission of some other crime.

Any violent felony means of a violent felony of any class, A, B, C, D or E. The term also includes any attempt to commit a violent felony of the of class A, B, C or D. Most drug trafficking felonies involve either Criminal Sale of a Controlled Substance of Operating as a Major Drug Trafficker.

Sentencing for Aggravated Criminal Possession of a Weapon

Aggravated Criminal Possession of a Weapon is a class C violent felony in New York. If a person has no prior felony convictions, then a conviction of the firearms charge carries a mandatory minimum prison sentence of 3.5 years and a maximum prison sentence of 15 years. Between 2 ½ and 5 years of post-release supervision is also required following release from prison.

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Unlawful Possession of Weapons By Persons Under Sixteen

Unlawful Possession of Weapons by Persons Under Sixteen, Penal Law Section 265.05 is punished the least severe of all weapons crimes in New York. Any teenager found guilty is adjudicated as a juvenile delinquent.

There are two reasons that a teenager found guilty of Unlawful Possession of Weapons by Persons Under Sixteen is adjudicated a juvenile delinquent. First, because people charged are 16 years old. Second, because the crime deals with non-firearms.

Under New York law, Unlawful Possession of Weapons by Persons Under Sixteen states that:

It shall be unlawful for any person under the age of sixteen to possess any air-gun, spring-gun or other instrument or weapon in which the propelling force is a spring or air, or any gun or any instrument or weapon in or upon which any loaded or blank cartridges may be used, or any loaded or blank cartridges or ammunition therefor, or any dangerous knife.

A person who violates the provisions of this section shall be adjudged a juvenile delinquent. There is one exception in the law. If the person possesses a rifle or shotgun or ammunition for either and has a hunting license or permit.

Juvenile delinquency proceedings occur in Family Court and not Criminal Court. The outcomes of juvenile delinquency proceedings commonly involve a sentence of some level of supervision, treatment or confinement. There is no criminal record for a person who is adjudged a juvenile delinquent.

Juvenile delinquency proceedings a very different from a person who is adjudicated as a juvenile offender. Under Penal Law Section 10.00(18), a juvenile offender is a child who is 13, 14 or 15 years old who is charged with a violent crime such as Murder, Assault in the First Degree, Robbery in the First or Second Degrees or Burglary in the First or Second Degree and prosecuted in a Criminal Court.

A child adjudicated as a juvenile offender allows a prosecutor to act if the person charged is an adult. However, a conviction as a juvenile offender does not result in a criminal conviction.

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Unlawful Possession of a Weapons Upon School Grounds

Unlawful Possession of a Weapons Upon School Grounds, Penal Law Section 265.06, is similar to Unlawful Possession of Weapons By Person Under Sixteen.

Unlawful Possession of a Weapons Upon School Grounds bars the possession of air guns and spring guns on school grounds without prior authorization from the educational institution, which is defined broadly to include school, college or university.

Unlawful Possession of a Weapons Upon School Grounds states: It shall be unlawful for any person age sixteen or older to knowingly possess any air-gun, spring-gun or other instrument or weapon in which the propelling force is a spring, air, piston or CO2 cartridge in or upon a building or grounds, used for educational purposes, of any school, college or university, without the written authorization of such educational institution.

Unlike Unlawful Possession of Weapons By Person Under Sixteen, where a child could be adjudged a juvenile delinquent, Unlawful Possession of a Weapons Upon School Grounds is categorized as a violation.

Unlawful Possession of a Weapons Upon School Grounds Punishments

Unlawful Possession of a Weapons Upon School Grounds is a violation. Unlike crimes that are classified as a misdemeanor or felony, a violation is not considered a criminal offense in New York. Thus, a conviction of a violation does not result in a criminal record. Even so, an experienced Weapons Possession defense attorney can often obtain the dismissal of an Unlawful Possession of a Weapons Upon School Grounds based on the specific facts.

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Speak With a NYC Gun Possession Lawyer Today

If you or a loved one is charged with a gun possession crime in New York City, we’re here to help.

Contact The Law Firm of Andrew M. Stengel

Contact us via the live chat below, through our contact form here, or call us at  (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.

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