Gun Possession Charges in New York

Posted By Galluzzo & Arnone LLP || 4-Oct-2010

If you do not have a license to possess a handgun in New York, you could be in serious trouble if law enforcement officers catch you with a loaded one. Specifically, you could be charged with Criminal Possession of a Weapon in the Second Degree, a Class C violent felony (Penal Law Section 265.03), and even as a first time felony offender, you might be facing anywhere from 3.5 to 15 years in jail.

Generally, assuming that you were in fact in knowing possession of an unlicensed and loaded handgun, there are two main considerations for whether you will be charged with this Class C violent felony. First: the location of the possession. If you knowingly possessed the unlicensed and loaded firearm outside of your home or place of business, then you probably are going to be charged with the crime (Penal Law 265.03) and your reasons for having the gun are irrelevant. So, it does you no good to claim, for example, that you only possessed the gun for protection. (In fact, an admission like this only helps the prosecutor further prove your knowing possession of the gun.) If, however, you knowingly possessed the unlicensed and loaded handgun in your home or place of business, then you are not guilty of this charge unless you possessed it with the intent to use it unlawfully against another. Put another way, your intent in possessing the loaded handgun is relevant when it is inside your home or place of business. So, if you knowingly possessed an unlicensed and loaded handgun in your home, you may only be guilty of a misdemeanor (it would depend on your criminal record in that case). On the other hand, if a man threatens his wife with a loaded handgun inside his home, he could be charged with a violation of Penal Law Section 265.03(1), among other things. Keep in mind, though, that Penal Law Section 265.15 provides that knowing possession of a firearm is by itself presumptive evidence of possession with the intent to use it unlawfully against another; this effectively means that a defendant has to prove that he had innocent reasons for possessing the gun.

If you or a loved one have been charged with a violation of Penal Law 265.03 (Criminal Possession of a Weapon in the Second Degree) and need representation, consider contacting experienced criminal defense attorneys who have successfully represented numerous people charged with this crime and are prepared to assist you as well.

The full text of a relevant handgun provision is as follows:

§ 265.03 Criminal possession of a weapon in the second degree. A person is guilty of criminal possession of a weapon in the second degree when: (1) with intent to use the same unlawfully against another, such person: (a) possesses a machine-gun; or (b) possesses a loaded firearm; or (c) possesses a disguised gun; or (2) such person possesses five or more firearms; or (3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person’s home or place of business. Criminal possession of a weapon in the second degree is a class C felony.

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