By: Adam H. Rosenblum Esq. | Last Updated:
New York has some of the tightest weapons laws in the country. Those caught violating any of the state’s numerous statutes relating to weapons possession can face serious jail/prison sentences as well as hefty fines. While guns get the most media attention, New York also limits the possession and use of other types of weapons, such as knives, brass knuckles, blackjacks, TASERs and more.
Penalties for Weapons Possession in New York
The punishment for weapons possession in New York depends on the exact charge. The main types of weapons possession offenses are as follows:
- Criminal Possession of a Firearm (P.L. 265.01-b) applies in cases where a person knowingly possesses an operable firearm. This is a class E felony punishable by 1 to 4 years in prison and a fine of up to $5,000.
- Criminal Possession of a Weapon, Fourth Degree (P.L. 265.01) is the least severe weapons offense in NY. It is a class A misdemeanor and applies to anyone carrying any kind of outlawed weapon. A conviction can lead to up to 1 year in jail.
- Criminal Possession of a Weapon, Third Degree (P.L. 265.02) is a class D felony and applies to a variety of more serious circumstances, such as when the weapon has been defaced so as to hide the serial number or another identifier, or when a person possesses three or more weapons at the time of being charged, among others. If convicted of criminal possession of a weapon in the fourth degree, a person faces a minimum of 2 years to as much as 7 years in prison.
- Criminal Possession of a Weapon, Second Degree (P.L. 265.03) is a class C felony with a minimum sentence of 3.5 years and a maximum sentence of 15 years. It applies in situations where a person is accused of having a loaded weapon with intent to use it unlawfully on another. It can also be charged against someone who possesses five or more firearms.
- Criminal Possession of a Weapon, First Degree (P.L. 265.04) is the most severe weapons possession charge in New York. A person can be charged with this class B felony if he/she is caught with an explosive device and intends to use it or if he/she is in possession of 10 or more firearms. Conviction means a minimum sentence of 5 years and a maximum sentence is 25 years in prison.
Penalties for Criminal Use of a Firearm (P.L. 265.08 & 265.09)
In addition to charges of criminal possession of a weapon, a person can also be charged with criminal use of a firearm. The difference between a criminal possession charge and a criminal use charge is that the latter requires the weapon to be used in the act of committing a class C felony (e.g. second-degree burglary) or class B felony (e.g. first-degree rape). In addition, the statute requires that the weapon be loaded with a shot that is readily capable of producing death or other serious injuries. Alternatively, the person can be charged if he/she displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm in the commission of said felony.
Criminal Use of a Firearm, Second Degree is itself a class C felony and carries a penalty of up to 15 years in prison on top of any possible sentencing for the underlying felony. Criminal Use of a Firearm, First Degree is a class B felony with a maximum possible sentence of 25 years in prison in addition to any penalties for the underlying felony.
Weapons Possession and Juveniles in NY
A juvenile, according to NYS law, is any person between the ages of 7 and 16. When a juvenile commits an offense that would be considered a crime for an adult, that person can be adjudged a juvenile delinquent. NYS Family Court hears juvenile delinquency cases.
Under New York P.L. 265.05, a minor in possession of a firearm, including air guns and spring guns, can be charged with Unlawful Possession of a Weapon by Persons Under Sixteen. This offense also applies to instances in which the weapon is loaded with blank cartridges, as well as possession of a dangerous knife.
There is no prescribed sentence attached to this offense. Family Court handles sentencing on a case-by-case basis. Depending on the situation, a juvenile accused of this offense may be ordered to confinement, counseling, or supervision.
Actual vs Constructive Possession of Weapons in NY
The concept of “possessing” a gun is more than just having it on one’s person. NY recognizes two types of possession. Actual possession means the person has predominant access to a weapon. This would be the case if the weapon was concealed on one’s person or nearby (between car seats).
By contrast, constructive possession implies that one or more persons had dominion or control over an item. A weapon found in one’s car, which a person has dominion over, even if it is not readily accessible (e.g. in the trunk) is still constructively possessed. The same is true of a weapon found under a bed in one’s home.
The law also allows for more than one person to have constructive possession of the same item. Going back to the example of a gun tucked between a car seat, a front-seat passenger and driver could both be construed as having constructive possession of such a weapon.
Defenses to Weapons Possession Charges in NY
There are two main ways to defend against a charge of weapons possession in New York. The first is to disprove that the search and seizure of the weapon were legal in the first place. For example, suppose a weapon was found in one’s vehicle, resulting in an arrest. If the police did not have probable cause to either conduct a traffic stop, search the vehicle, or both, then the weapons possession charge could be dismissed.
The second defense is to disprove possession. Clearly, if the gun was on the person, then this may be very difficult. However, in cases involving constructive possession (see above) it may be possible. While having weapons in a home can be sufficient reason to arrest everyone on the premises, it is not always enough to convict all those present at the time the weapon was uncovered. A skilled attorney can analyze the facts to present a strong case disproving constructive possession, especially in matters involving multiple individuals arrested for possession of the same weapon or weapons.
In addition to the two strategies above, it may be possible to weaken the credibility of the officer’s testimony. This is difficult, as judges rely heavily on officers to provide credible testimony. This could be done with multiple witnesses reporting contradictory facts to those put forth by the officer. How effective such a strategy would be depends on the facts of the case.
Why Hire an Attorney for a Weapons Possession Charge in NY?
Even the least severe charge of criminal possession of a weapon in NY can result in serious prison time and a permanent criminal record. This is simply not the kind of thing a person should attempt to handle without the advice of an experienced criminal defense attorney. Only a skilled attorney can analyze the facts of the case to determine the most effective strategy for beating a weapons possession charge. An attorney’s detailed understanding of the law and the defendant’s rights allows him/her to draw a path to having charges reduced, charges dismissed, or receiving a not guilty verdict at trial.
While New York has many talented public defenders, a person is always better represented when hiring a private attorney. The fact is most public defenders are overworked and may not have the time and energy to dedicate to one’s case. The right private attorney, by contrast, will make every effort to either negotiate a deal with prosecutors to reduce the charge to a lesser offense with little or no jail time, or beat the charges at trial, depending on the circumstances.
What Kind of Weapons Are Prohibited Under NY Law?
In addition to guns, there are several other kinds of weapons that are prohibited under NY’s criminal possession of a weapon laws. These include:
- Automatic knife
- Cane Sword
- Chuka stick
- Electronic dart gun
- Electronic stun gun
- Gravity knife
- Imitation pistol
- Kung Fu star or shirken
- Metal knuckle knife
- Pilum ballistic knife
- Sand club
- Switchblade knife
- Wrist-brace slingshot
What is NY’s “Bump up” Rule?
New York’s weapons possession laws include something known as the “bump up” rule. Under Statute 265.02, any person accused of fourth-degree criminal weapons possession (a class A misdemeanor) who has been convicted of another criminal offense in the past five years can instead be charged with third-degree criminal weapons possession (a class D felony). This significantly increases the possible sentence from 1 year to 7 years.
NY Weapons Possession Exception for Home or Business
In most cases, a person is allowed an exception to New York’s weapons possession rules. Most kinds of weapons, including many kinds of firearms, are permitted for use within one’s home or place of business. Unfortunately, this exception does not apply to individuals with prior convictions.
What Does “Loaded” Weapon Really Mean in NY?
The question of whether or not a firearm is loaded can make a difference in determining the severity of a weapons possession charge in New York State. For example, a person can be charged with the misdemeanor offense of fourth-degree weapons possession for carrying an unloaded revolver. But if that same gun were loaded, then the same person could be charged with the felony offense of third-degree weapons possession.
The concept of a loaded weapon seems easy to understand, but the definition of “loaded” that New York State uses is not quite what most people think. NY Penal Law defines a “loaded firearm” as any firearm that either has ammunition in the chamber or cartridge, or “any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm.” Thus, even if a gun does not have bullets in it, a person who has both the gun and the appropriate bullets for that gun on his/her person at the same time can be charged with having a loaded weapon.
How Does New York Law Define a “Firearm”?
New York State defines a “firearm” as:
- Any pistol or revolver (handgun); or
- A shotgun having one or more barrels less than 18 inches in length; or
- A rifle having one or more barrels less than 16 inches in length; or
- Any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon as altered, modified, or otherwise has an overall length of less than 26 inches; or
- An assault weapon.
The length of a shotgun or rifle barrel is measured using the distance between the muzzle and the face or the bolt, breech, or breech lock. The “overall length” of a weapon made from a shotgun or rifle is determined by measuring the distance between the extreme ends of the weapon along a line parallel to the center line of the bore.
NY defines a “shotgun” as a weapon intended to be fired from the shoulder which uses the energy of an explosive in a fixed shotgun shell “to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.”
NY defines a “rifle” as a weapon intended to be fired from the shoulder which uses the energy of an explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger.”
An “antique firearm” is considered a different classification from traditional firearms. These are defined as being “any unloaded muzzle loading pistol or revolver with a matchlock, flintlock, percussion cap, or similar type of ignition system, or a pistol or revolver which uses fixed cartridges which are no longer available in the ordinary channels of commercial trade.”
The definition of an “assault weapon” under NY law is too lengthy to reproduce, but interested parties can find it here.
What If I Have a License for My Gun from Another State?
A person who has a license for a weapon in another state may be permitted to carry or possess that weapon in their home state. However, without a license issued in New York State, that weapon cannot be brought to or used within NY’s borders. Those who bring a gun or other banned weapon (e.g. TASER or gravity knife) into New York can be arrested for criminal possession of a weapon.
Can I Get My Conviction for Weapons Possession in NY Sealed?
New York allows a person to seal up to two convictions (but only one felony), provided the person meets all other criteria. Most weapons possession offenses are eligible for sealing in New York. One should keep in mind that some offenses that may accompany weapons offenses, such as second-degree robbery, are not eligible for sealing.
To figure out if one’s record can be sealed, first read our information page on sealing criminal records in New York. Then reach out to an attorney to find out one’s options.
Who Should I Contact?
If you or someone you love has been arrested for criminal possession of a weapon or any other criminal offense in New York, contact an attorney right away for advice. The lawyers at Rosenblum Law are experienced criminal defense attorneys with offices in New York and New Jersey. Email or call 888-883-5529 for a free consultation about your case.