What is criminal sale of a gun in NYC?
In New York, two licenses are required to act as a gun dealer or to sell firearms. The sale, transfer or disposal of firearms in New York is punished as a violent felony.
First, a person must have a license from the federal government, which is issued by the Bureau of Alcohol, Tobacco, Firearms & Explosives or ATF. The license is called a Federal Firearms License and is necessary if a person “devotes time, attention and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms. . . with the principal objective of livelihood and profit.”
However, private sellers are exempted from the federal licensing requirements. Generally speaking, private sellers are people “who make occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”
New York also requires a license for people who engage “in the business of purchasing, selling, keeping for sale, loaning, leasing, or in any manner disposing of, any assault weapon, large capacity ammunition feeding device, pistol or revolver.”
However, New York does not require sellers of legal long guns only, rifles and shotguns, to obtain a state license. In New York, applications are submitted in New York City or the county where the business is located. The application process is similar to the background check that is conducted for a license to possess a firearm.
Firearms dealers in New York are highly regulated. Some of the regulations include:
- Requiring locking devices with the sale of a firearm
- Requiring records for the sale of firearms and ammunition to be kept for inspection
- Prohibiting the sale of ammunition to people less than 16 years old and to people who are barred from possessing a firearm
Criminal Sale of a Firearm in New York: Degrees and Related Charges
- Criminal Sale of a Firearm in the Third Degree
- Criminal Sale of a Firearm in the Second Degree
- Criminal Sale of a Firearm in the First Degree
- Criminal Sale of a Firearm with the Aid of a Minor
- Criminal Purchase or Disposal of a Weapon
NYC Criminal Sale of a Firearm in the Third Degree
Criminal Sale of a Firearm in the Third Degree, Penal Law Section 265.11, is a class D violent felony. New York’s restrictive firearms laws also extend to the sale, transfer or disposal of a firearm or certain firearm parts.
Criminal Sale of a Firearm in the Third Degree is charged when a person is not authorized pursuant to law to possess a firearm and such person unlawfully either:
- Sells, exchanges, gives or disposes of a firearm or large capacity ammunition feeding device to another person; or
- Possesses a firearm with the intent to sell it
The firearms charge does not require the firearm to be loaded, but it does require the firearm to be operable or capable of discharging ammunition. Criminal Sale of a Firearm in the Third Degree is commonly charged with another crime such as Criminal Possession of a Firearm in the Second or Third Degree because the crime includes the element “not authorized pursuant to law to possess a firearm.”
Under the law, a large capacity feeding device was defined as a magazine, belt, drum, feed strip, or similar device that has a capacity of more than 10 before March 29, 2013, and more than 7 after that date. However, on December 31, 2013, a federal judge in Western New York overturned the 7-capacity limit. Thus, New York’s law is that a large capacity feeding device is a magazine, belt, drum, feed strip, or similar device that has a capacity of more than 10.
Defenses to Criminal Sale of a Gun in the Third Degree
One important defense to the Criminal Sale of a Firearm in the Third Degree involves a person’s intent if a sale was not actually made. One of the two provisions of the firearms charge punishes an intent to sell a firearm when not authorized to possess the firearm, which is far short of an actual sale.
However, that means that a prosecutor must prove that a person had the intent to sell. The common proof offered by a prosecutor tends to be an advertisement. Second, both provisions of the law include the term unlawfully.
Sentencing 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. The minimum prison sentence is 2 years in prison and the maximum is 7 for a person who hs not been convicted of a felony. A conviction also requires post-release supervision between 1 ½ and 3 years. However, a Judge an also sentence a person to 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 Criminal Sale of a Firearm in the Third Degree include a split sentence of up to 6 months in prison and 5 years probation. One non-jail alternative is 3, 4 or 5 years probation, if a judge concludes that probation is not inconsistent with the ends of justice, prison is not necessary to protect the public and the person charged needs training or other assistance that can be administered by the Department of Probation. Another non-jail sentence is a 3-year conditional discharge upon a finding that is a pre-condition to probation, though training is not required.
Criminal Sale of a Gun in the Second Degree in New York City
Criminal Sale of a Firearm in the Second Degree, Penal Law Section 265.11, is a class C violent felony. Under Criminal Sale of a Firearm in the Second Degree, a person will be charged when he or she either:
- Unlawfully sells, exchanges, gives or disposes of to another 5 or more firearms; or
- Unlawfully sells, exchanges, gives or disposes of to another person or persons a total of 5 or more firearms in a period of not more than 1 year.
Criminal Sale of a Firearm in the Second Degree is similar to the Third Degree crime with 2 major differences. First, the Second Degree firearms charge requires multiple firearms instead of a single firearm, either 5 to 1 person over any period of time or 5 to multiple people within 1 year. Second, possession with the intent to sell a firearm is not included in Criminal Sale of a Firearm in the Second Degree. Thus, to make out a charge of Criminal Sale of a Firearm in the Second Degree a person must not merely intend to sell firearms, the accused must sell, exchange, give or dispose of at least 5 firearms.
Sentencing for Criminal Sale of a Gun in the Second Degree
Criminal Sale of a Firearm in the Second Degree is a class C violent felony, which requires a mandatory minimum prison sentence of at least 3.5 years and a maximum of 15 years. A term of post-release supervision of between 2 ½ and 5 years is also required.
New York Criminal Sale of a Firearm in the First Degree
Criminal Sale of a Firearm in the First Degree, Penal Law Section 265.13, is a class B violent felony. Under Criminal Sale of a Firearm in the First Degree, a person will be charged when he or she either:
- Unlawfully sells, exchanges, gives or disposes of to another 10 or more firearms; or
- Unlawfully sells, exchanges, gives or disposes of to another person or persons a total of 10 or more firearms in a period of not more than 1 year.
Criminal Sale of a Firearm in the First Degree is similar to the Second Degree with the double of number of firearms sold, exchanged, given or disposed. The Second Degree crime requires 5 or more firearms to 1 person over any period of time or 5 to more than one person within 1 year,
Sentencing 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, which requires a mandatory minimum prison sentence of at least 5 years and a maximum of 25 years. A term of post-release supervision of between 2 ½ and 5 years is also required.
Criminal Purchase or Disposal of a Weapon in NYC
Criminal Purchase or Disposal of a Weapon, Penal Law Section 265.17, is charged when purchasing or disposing of a firearm for him or herself or another person when they know that they or the other person are prohibited from possessing a firearm.
Criminal Purchase or Disposal of a Weapon, which is a class D non-violent felony, is charged in 3 circumstances:
- Knowing that he or she is prohibited by law from possessing a firearm, rifle or shotgun because of a prior conviction or because of some other disability which would render him or her ineligible to lawfully possess a firearm, rifle or shotgun in this state, such person purchases a firearm, rifle or shotgun from another person;
- Knowing that it would be unlawful for another person to possess a firearm, rifle or shotgun, he or she purchases a firearm, rifle or shotgun for, on behalf of, or for the use of such other person; or
- Knowing that another person is prohibited by law from possessing a firearm, rifle or shotgun because of a prior conviction or because of some other disability which would render him or her ineligible to lawfully possess a firearm, rifle or shotgun in this state, a person disposes of a firearm, rifle or shotgun to such other person
The term knowing is included in all 3 varieties of Criminal Purchase or Disposal of a Weapon. That means, to be convicted of Criminal Purchase or Disposal of a Weapon in New York, a person has to have knowledge that he, she or another person is prohibited by law from possessing a firearm, rifle or shotgun. It is a defense to the charge that a person did not know about the prohibition. However, the question of knowledge is a factual one.
In addition, the term disposes of is used in 1 of the 3 types of Criminal Purchase or Disposal of a Weapon charges. The term is defined broadly to mean: give, give away, lease, loan, keep for sale, offer, offer for sale, sell, transfer and otherwise dispose of.
Sentencing for Criminal Purchase or Disposal of a Weapon
In New York, Criminal Purchase or Disposal of a Weapon, is a class D non-violent felony and prison is not mandatory if a person is convicted. The minimum prison sentence is 1 to 3 years and the maximum is 2 1/3 to 7 years if there are no prior felony convictions. A Judge also has the option to sentence a person to 1 year, a split sentence of up to 6 months in prison and 5 years probation, 3, 4, or 5 years probation and a conditional discharge for 3 years.
Criminal Sale of a Firearm with the Aid of a Minor in New York
In New York City, Criminal Sale of a Firearm with the Aid of a Minor, Penal Law Section 265.16, is categorized as a class C non-violent felony.
Criminal Sale of a Firearm with the Aid of a Minor is charged when: a person is not authorized pursuant to law to possess a firearm and he unlawfully sells, exchanges, gives or disposes of a firearm to another person who is or reasonably appears to be less than 19 years of age who is not licensed pursuant to law to possess a firearm.
The law has a few important requirements. First, although the law is called Criminal Sale of a Firearm with the Aid of a Minor, the required age of the person who allegedly receives the firearm is less than 19 years old. However, it is generally understood that a person is considered an adult in New York at 17 or 18 years old, depending upon the area of law.
In addition, whether a person appears to be less than 19 years old is a fact specific question. Second, the law does not require a sale, the firearm could be swapped or exchange, given as a gift or disposed of. Finally, the law requires the seller or given to be ineligible to possess a firearm and the recipient to be not licensed. There is a difference between ineligibility and not licensed.
An ineligible person is prevented by law from owning a firearm. Whereas, a person without a license may be eligible to own a firearm, but he or she does not have the required license.
Sentencing for Criminal Sale of a Firearm with the Aid of a Minor
Criminal Sale of a Firearm with the Aid of a Minor in New York is a class C non-violent felony and prison is not mandatory if a person is convicted. The firearms charge is a rare class C felony firearms offense that is not a violent felony and requires a mandatory minimum prison sentence.
The minimum prison sentence for a Criminal Sale of a Firearm with the Aid of a Minor is 1 to 3 years and the maximum is 2 1/3 to 7 years if a person does not have a prior felony conviction.
A Judge also has the option to sentence a person to 1 year, a split sentence of up to 6 months in prison and 5 years probation, 3, 4, or 5 years probation and a conditional discharge for 3 years.
Speak With a NYC Gun Sales Defense Lawyer Today
If you or a loved one is charged with a criminal sale of a gun in New York City, we’re here to help.
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