Gun Possession Lawyer NYC

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

As 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).

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.

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.

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.

Criminal Possession of a Weapon in the Second Degree

Criminal 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.

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.

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.

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.

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.