Have you been arrested for bringing a gun to a New York?
There is an age-old principle of law which says that ignorance of the law
is no excuse for breaking it (ignorantia juris non exusat); if it were, one could claim a defense to every crime on the grounds
that he/she was unaware such conduct was illegal. While the general policy
implications of the doctrine are obvious, there is one particular area
of the law where this doctrine seems to have an extremely harsh impact
on individuals and their families, and that is in cases where people with
out-of-state permits to possess firearms pass through either one of New
York City's two major airports with properly-secured guns, completely
unaware that they are committing what is classified as a "violent
felony" here. What's worse is that their conduct is perfectly
legal in their home states and they have no idea that New York does not
recognize their out of state gun permits. The result is that travelers
literally hand over their weapons to the authorities thinking that what
they are doing is perfectly legal and proper, only to find out that the
are being arrested and charged with a serious crime.
Many people enter New York City with guns which are legal to possess in
their home states. In fact, many of these people have properly obtained
permits to possess their guns back home and are simply unaware that those
permits do not bestow the right to possess those guns here in New York
City. All too often, unsuspecting travelers will walk into either La Guardia
or JFK International airport with their firearms under the mistaken belief
that the permit or license they properly obtained in their home state
is applicable here. The traveler has no idea that he or she is violating
New York law by possessing the firearm until he/she is arrested after
properly securing the firearm in the appropriate travel case and declaring
it at the airport. In other situations, the passenger secures and checks
the gun in their home state where they are duly licensed, in compliance
with Federal Law and airline regulations, and no one in the departing
state stops them from travelling to New York City! It isn't until
that person arrives in New York and finds themselves in handcuffs and
shipped off to central booking then criminal court, where it can take
24 hours in custody before they get to see a Judge and hopefully the light
of day if they are released. The result is both shocking and terrifying
to the person who never saw any of this coming...
In a vast majority of these cases, not only has the person secured the
firearm in the proper travelling case, but they have unloaded the firearm
and secured the ammunition apart from the firearm itself and declared
or checked that too. Not only is the person unaware that their out of
state permit has no effect in New York, they have no idea that in the
eyes of New York law they are carrying a LOADED firearm.
New York Penal Law 265.00(3) defines a "firearm," in pertinent
part, as any pistol or revolver. PL 265.00(15) defines a "loaded
firearm" as follows - "any firearm loaded with ammunition 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."
The italicized portion of subdivision 15 is what makes this common occurrence
so serious - even if there isn't a single bullet in the gun, the law
will consider it "legally loaded" if the person in possession
of the gun is also in possession of ammunition for it, regardless of the
fact that it is removed from the gun itself. That the ammunition is in
a completely separate container or section of the packaging than the gun
is of no consequence - you are in possession of a "loaded" firearm.
As if this weren't enough of a shock to the traveler who didn't
realize he/she was doing anything illegal, that person is then charged
with violating Penal Law Section 265.03(3), Criminal Possession a Weapon
in the Second Degree, which reads as follows:
"A person is guilty of criminal possession of a weapon in the second
degree when such person possesses a loaded firearm."
This charge is a class C violent felony, which means that it carries a
MINIMUM sentence of 3.5 years in prison, and as much as 15 years in prison.
The case is then handed to a prosecutor in about as perfect a package
as was the gun when it was literally handed over to the authorities by
the traveler at the airport. Because there is often no factual question
that the traveler possesses the gun, and ignorance of the law provides
no legal defense, the prosecutor then has all of the leverage in world.
The prosecutor can demand a 3.5 year prison sentence, or may come down
to a lower felony and offer less time (The Manhattan District Attorney's
Office has often demanded a 2 year prison sentence in even first arrest
gun cases). The one silver lining, however, is that the prosecutor also
has the discretion to come down to a non-jail sentence, and a defense
attorney can advocate for leniency despite the fact that there is no legal
defense to the charge.
The only option in a case such as this is to hire an experienced attorney
who can hit the ground running to work with the prosecutor to try to negotiate
a fair disposition that avoids the stiff penalties of imprisonment that
are available given the nature of the charges.
If you or someone close to you has been
arrested for bringing a firearm to one of New York's airports, or for
gun possession anywhere for that matter, contact an experienced criminal
defense attorney at Galluzzo and Arnone LLP, where several of our attorneys are former
prosecutors can help you.
“NYC Lawyers Explain Gun Possession and Related Charges”
criminal possession of a weapon,
new york city,