🔹 Key Federal Statutes Governing Firearm Sales

1. 18 U.S.C. § 922(a)(1)(A): Engaging in the Business Without a License

This statute makes it unlawful for any person, except a licensed importer, manufacturer, or dealer, to engage in the business of importing, manufacturing, or dealing in firearms. Violators can face up to five years in federal prison and fines up to $250,000.

2. 18 U.S.C. § 922(a)(6): False Statements During Firearm Transactions

It is illegal to knowingly make false statements or present false identification when purchasing a firearm. This includes providing inaccurate information on ATF Form 4473. Convictions can result in up to ten years of imprisonment

3. 18 U.S.C. § 922(d): Sale to Prohibited Persons

Selling firearms to individuals prohibited from possessing them—such as felons, fugitives, or those with certain mental health conditions—is a federal offense. Penalties can include up to ten years in prison.

4. 18 U.S.C. § 922(k): Possession of Firearms with Altered Serial Numbers

Possessing, transporting, or receiving firearms with removed or altered serial numbers is prohibited. Violators may face up to five years of imprisonment.

5. 18 U.S.C. § 924(c): Use of Firearm in Relation to a Crime

Using or carrying a firearm during and in relation to any crime of violence or drug trafficking crime carries mandatory minimum sentences:

• 5 years for possession
• 7 years if the firearm is brandished
• 10 years if discharged

These sentences run consecutively to any other sentence imposed.

🔹 Penalties and Sentencing Enhancements

Penalties for illegal firearm sales can be severe, especially when combined with other criminal activities:

• Felon in Possession (18 U.S.C. § 922(g)): Up to 10 years in prison.
• Straw Purchases (18 U.S.C. § 922(a)(6)): Up to 10 years in prison.
• Sale of Illegal Firearms: Up to 10 years in prison.

Mandatory minimum sentences apply in cases involving crimes of violence or drug trafficking.

🔹 Real-World Example: Unlicensed Firearm Manufacturing

In a notable case, Nicholas DeFelice of Montville, Connecticut, was sentenced to over a year in federal prison for illegally manufacturing and selling firearms without a license. Operating under “DeFelice Defense,” he produced and distributed over 200 firearms. An ATF investigation revealed he sold a custom-made firearm to undercover agents. A search of his residence uncovered numerous unregistered firearms and accessories. CT Insider

🔹 Conclusion

Federal laws strictly regulate the sale and distribution of firearms to ensure public safety. Engaging in unlicensed sales, making false statements during transactions, or selling to prohibited individuals can lead to significant legal consequences, including substantial fines and lengthy imprisonment. Compliance with federal firearm regulations is essential for all individuals and entities involved in firearm transactions.

Matthew Galluzzo is a former Manhattan prosecutor and experienced federal criminal defense attorney. He has successfully represented many people investigated for and accused of federal firearms offenses. If you or a loved one have been accused in New York or Connecticut federal court of unlawfully selling firearms, you should strongly consider engaging Matthew Galluzzo.

an unserialized “ghost gun” seized from a client

🛠️ Defining Ghost Guns and Unserialized Components

Under New York law, a “ghost gun” refers to an unserialized firearm, including both completed and unfinished frames or receivers. An “unfinished frame or receiver” is defined as any material that has been shaped or formed for the purpose of becoming the frame or receiver of a firearm and which may readily be made into a functional frame or receiver through milling, drilling, or other means. 

⚖️ Key Statutes and Offenses

1. Criminal Sale of a Ghost Gun in the Second Degree (Penal Law § 265.60)

• Offense: Knowingly selling, exchanging, giving, or disposing of a ghost gun to another person.
• Exceptions: Not applicable if the individual voluntarily surrenders the ghost gun to law enforcement or, within six months, disposes of it to a licensed gunsmith.
• Penalty: Class E felony.  

2. Criminal Sale of a Ghost Gun in the First Degree (Penal Law § 265.61)

• Offense: Selling, exchanging, giving, or disposing of ten or more ghost guns to another person.
• Exceptions: Similar to the second-degree offense, including voluntary surrender or transfer to a licensed gunsmith within six months.
• Penalty: Class D felony.

3. Criminal Possession of an Undetectable Firearm (Penal Law § 265.01(9))

• Offense: Knowingly possessing a firearm that is not detectable by metal detectors or X-ray machines.
• Penalty: Class D felony. 

🛡️ Legislative Background

In 2021, New York enacted the Jose Webster Untraceable Firearms Act and the Scott J. Beigel Unfinished Receiver Act, which collectively prohibit the possession and sale of ghost guns and their components. These laws also require gunsmiths and dealers to register firearms and unfinished frames or receivers they assemble. 

📌 Enforcement and Legal Precedents

In March 2024, New York Attorney General Letitia James secured a $7.8 million judgment against Florida-based retailer Indie Guns for illegally selling ghost gun components in New York. The company was permanently banned from selling such parts in the state.

Additionally, in December 2024, Congressman Ritchie Torres called on Governor Kathy Hochul to close loopholes in New York’s ghost gun laws, particularly concerning the manufacturing of 3D-printed ghost guns, following a high-profile murder involving such a weapon.

📝 Conclusion

New York’s stringent laws aim to curb the proliferation of ghost guns and enhance public safety. Individuals found in violation of these statutes face serious legal consequences, including felony charges and significant penalties. The state’s proactive approach underscores its commitment to addressing the challenges posed by untraceable firearms. Of course, the possession or sale or use of ghost guns can also be prosecuted in federal courts by federal prosecutors under federal law, too.

Matthew Galluzzo is a former Manhattan prosecutor and experienced criminal defense attorney who has successfully defended and represented people arrested for the possession of ghost guns. If you or a loved one have been arrested for this offense in the New York City area, you should strongly consider engaging Matthew Galluzzo to be your attorney.

Common Desk Appearance Tickets from JFK Airport include 1) shoplifting offenses (Petit Larceny – PL 155.25, a Class A misdemeanor) at the JFK retail shops or duty-free stores, 2) misdemeanor possession of controlled substances (PL 220.03), 3) misdemeanor possession of a weapon, such as a knife or collapsable baton or brass knuckles (PL 265.01), 4) theft of services, such as failing to pay a bar or restaurant tab (PL 165.15), and 5) assault (PL 120.00, a Class A misdemeanor). However, there are many other possible offenses at JFK Airport that could result in Desk Appearance Tickets.

A Desk Appearance Ticket is the same thing as a criminal arrest and a conviction for a misdemeanor can give you a permanent and public criminal record. It can also potentially result in jail time, probation, fines, loss of employment, loss of immigration status, and loss of licensure, depending on the circumstances. These DATs must be taken seriously, as should any criminal arrest. Matthew Galluzzo has successfully helped over 100 clients earn dismissals in cases involving Desk Appearance Tickets, and has specifically helped over a dozen clients with charges stemming from JFK Airport.

Generally, a person who receives a Desk Appearance Ticket from JFK Airport must appear in Queens Criminal Court (located at 125-01 Queens Boulevard) as instructed by the ticket. Sometimes these court dates occur on weekends. Of course, many of the people arrested in JFK are travelers from out of town or even out of the country. In certain types of cases, Matthew Galluzzo has successfully appeared of behalf of many out-of-town and foreign clients and resolved these cases favorably without the clients having to appear personally. If you are a foreign or out-of-town client with a JFK Desk Appearance Ticket, you should strongly consider hiring Matthew Galluzzo to appear on your behalf, so that you do not have to make a special trip back to New York City just to appear in court to resolve a misdemeanor offense.

Though the client had a license to lawfully own and carry his firearm in his home state of Georgia, that right does not apply in New York. As such, his license was not, strictly speaking, a defense to the charges in New York. Nevertheless, Mr. Galluzzo successfully persuaded Queens prosecutors that the client had no malicious intent in bringing the firearm to New York, and that his possession of it in LaGuardia was attributable only to his mistaken assumption that his license permitted him to bring it to New York. Mr. Galluzzo further provided evidence of the client’s status as a scholarship student-athlete, his record of community service, and his good character. The prosecutors reviewed Mr. Galluzzo’s written submission and ultimately agreed to dismiss the felony and misdemeanor charges. The client was allowed to plead guilty to a non-criminal violation with a $120 fine, meaning that the client will have no public criminal record and can lawfully say that he has never been convicted of a crime.

Every years, hundreds of people are arrested in New York area airports for bringing otherwise-lawful firearms into the city. If you or a loved one have been arrested for that offense, you should strongly consider contacting Mr. Galluzzo. Mr. Galluzzo has successfully represented many people accused of having weapons at the airport with a strong record of success. As a former New York City prosecutor himself, he knows how to best persuade prosecutors to show leniency and decline to pursue felony charges against generally law-abiding people.

A person is guilty of criminal possession of a weapon in the fourth degree when:

(1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star”; or

(2) He or she possesses any dagger, dangerous knife, dirk, machete, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another;

Criminal possession of a weapon in the fourth degree is a class A misdemeanor. (Note: there are other subsections of this charge that are far less common than these two subsections). The maximum penalty is one year in jail, and a conviction for these charge can have negative immigration consequences for non-citizens residing in the United States.

Thankfully, these cases can often be successfully defended by a savvy lawyer. Sometimes, an experienced criminal defense attorney can litigate the legality or constitutionality of the police search that yielded the weapon in the first place, potentially resulting in a dismissal of all charges. We have also once successfully obtained an acquittal for a client by persuading a jury with a technical argument that the knife seized from his client was not in fact a gravity knife (as alleged by the prosecutor). Most often, though, clients seek to negotiate reasonable dispositions for these cases that do not result in permanent criminal records or immigration consequences. The attorneys at The Law Office of Matthew Galluzzo have successfully negotiated favorable results or dismissals dozens of times by demonstrating to prosecutors the good characters or backgrounds of their clients. If you or a loved one have been charged with possessing a weapon, you should contact them immediately.

As former prosecutors who specialize in criminal defense, our attorneys at The Law Office of Matthew Galluzzo have a great deal of experience assisting people who find themselves in the unfortunate position of being charged with weapons possession, in particular what are commonly referred to as ‘gravity knives.’ Indeed, many of our clients lawfully purchase these knives from such on-line marketplaces as Amazon.com or in popular brick-and-mortar stores like K-Mart. Completely unaware that the possession of such knives is illegal in New York, these clients openly carry the knives on their belts, or clipped to their pockets, only to find themselves in handcuffs and going to criminal court charged with the Class “A” misdemeanor of Criminal Possession of a Weapon in the Fourth Degree (which is punishable by up to 1 year in jail).

So what exactly is a gravity knife? A “Gravity knife” is defined under New York Penal Law 265.01(5) as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application or centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” In practical terms, any knife which a police officer can open with the flick of a wrist and which locks into place falls under this definition. Not surprisingly, police officers are particularly adept at opening and locking the knives into place.

Although the Second Circuit Court of Appeals has held that the gravity knife ban is not unconstitutionally vague for the moment, they have not ruled out that a future challenge to the ban on different grounds might be successful. Nevertheless, for the moment, it is still illegal to carry a gravity in New York State. If you find yourself in a position where you have been arrested and charged with possessing a gravity knife, you need to contact an experienced criminal defense attorney immediately.

Many (if not most) of our first-arrest clients accused of possessing gravity knifes are issued “Desk Appearance Tickets” by the police department, a fact which can be deceiving. A person who receives a ticket is commanded to appear in Court on a future date, and failure to do so – as we ALWAYS admonish our readers – can and WILL result in a warrant being issued for your arrest.

Additionally, if you intend to simply “show up” in Court and plead guilty to the charge, you will incur a permanent criminal record. This is why it is imperative to consult with an attorney. To be sure, some of the local District Attorney’s Offices take weapons cases – gravity knife cases in particular – very seriously, and will not make non-criminal offers at your first Court appearance, if at all. Thus, it is absolutely necessary to enlist the help of an experienced attorney who can convince the prosecutor in your case to deviate from the weapons charge and preserve your record and future. Our team of former prosecutors have a proven track record and a long list of excellent results in such cases.

If you or a loved one are charged with possessing a gravity knife, contact our firm immediately. Our lawyers are on call ready to help.

If you or a loved one are wrongfully accused of any offense, contact the experienced attorneys at The Law Office of Matthew Galluzzo – they have a proven track record of success and will fight just as agressively for you.

Specifically, New York prohibits the possession of any gravity knife, switchblade, stilletto, certain clubs, darts, slingshots, brass knuckles, and even such exotic things as chuka sticks and throwing stars. Thus, even though many of these things are widely available — even in stores selling them in New York City itself — police will take the opportunity to arrest you and charge you with Criminal Possession of a Weapon in the Fourth Degree pursuant to Penal Law section 265.01.

More often than not, this situation will occur when a person is attempting to board a flight at the aiport and is subject to security screening by TSA. In those situations, TSA will alert local police and you would find yourself at the local precinct and on the way to Queens County Criminal Court at 125-01 Queens Boulvard, Queens, NY 11415.

If this happens to your or a loved one, you should call experienced and qualified counsel to attempt to end your case at arraignments (which is the first appearance before a local judge). These cases must be handled appropriately from the outset. A good attorney should be able to — at a minimum — convince the judge to release you from jail. Moreover, these cases can oftentimes be disposed of at arraignments with either a dismissal or a plea to a lesser included offense, without you ever having to return to New York.

The plain clothes police officers approach the car and ask everyone to step out. One of the officers flashes a light into the interior of the car and sees the reflection of a silver object under the front passenger seat. Without asking a question, he reaches under the seat and retrieves a silver handgun, which he determines to be loaded

Question: How do the police officers determine who to arrest? The answer is easy – they arrest everyone. Alex, Brian, Chris, and you are all jointly charged with Criminal Possession of a Weapon in the Second Degree in violation of Penal Law 265.03(1)(b), which is a class “C” felony, and which carries a maximum of 15 years in jail.

What is the police officers’ authority to do this? The answer is the “gun presumption” or “car presumption,” which allows the police to charge everyone in the car with possessing that one gun pursuant to statute. Penal Law 265.15 states as follows: “The presence in an automobile…of any firearm…is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon…is found.” The statute goes on to exclude the following scenarios:

“Except: (a) if such weapon…is found upon the person of one of the occupants therein;

(b) if such weapon…is found in an automobile which is being operated for hire by a duly licensed driver in the due, lawful and proper pursuit of his or her trade, then such presumption shall not apply to the driver;

(c) if the weapon so found is a pistol or revolver and one of the occupants, not present under duress, has in his or her possession a valid license to have and carry concealed the same.

In other words, if an unlicensed gun is found in a vehicle and not on the person of one of the passengers (e.g., in their waistband), any and all occupants (except a duly licensed hired driver) will be charged with possessing that one gun. The fact that one gun can be “possessed” by more than one person may seem contrary to logic, but the law distinguishes between “possessing” something and owning it. In order to possess something you simply have to exercise “dominion or control” over it…i.e., be able to pick it up, kick it, use it, or hide it. There is no numerical limit on how many people may possess something.

This is a common theme in New York gun possession: even though the gun was “Brian’s,” the police never observed it on him – arguably they’d be eyeing you with more fervor as the owner since it was at your feet when the car was stopped. In any event, EVERY passenger in the case would be facing serious felony charges.

If you or someone you know has been arrested and charged with possessing a gun in a car, or any weapon for that matter, you need to hire an experienced criminal lawyer. Some jurisdictions such as Manhattan have very strict gun enforcement practices and recommend state prison in practically every gun case. Obviously, it is not a matter to take lightly, and it is a must to have an attorney who will defend you in such a situation.

“NEW YORK CRIMINAL LAWYERS ON DEFENDING POSSESSION OF A GUN IN A CAR”

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 the Law Office of Matthew Galluzzo, where several of our attorneys are former prosecutors can help you.

“NYC Lawyers Explain Gun Possession and Related Charges”

The common-sense explanation notwithstanding, Article 265 of the New York Penal Law defines a loaded firearm as follows:

“Loaded firearm” means 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.

Thus, in People v. Tillery, 60 A.D.3d 1203 (3d Dep’t 2009), the defendant’s criminal possession of a weapon charge was upheld where the police arrested defendant with an “un”-loaded shotgun in his vehicle, but five shells in his pocket. The moral of the story is that when it comes to gun and weapons-possessions cases in general, the law may not seem to comport with common-sense definitions. If you have been arrested for or charged with a weapons possession offense, you need to consult withcompetent criminal defense attorneys with knowledge of the New York Penal Law and its nuances.

NYC Administration Code § 10-133 prohibits the possession of the two main types of knives. First, subdivision (b) makes it illegal to carry a knife with a blade length of four inches or more. Obviously, the average chef’s knife has a blade that long, as do many folding knives used for hunting or fishing. Fortunately, subdivision (b) does permit you to carry such a knife “to or from a place where it is used for hunting, fishing, camping, hiking, picnicking or any employment, trade or occupation customarily requiring the use of such knife.” In our experience, though, police officers are frequently not persuaded by the explanation that the knife is used at work to open boxes, and will issue a ticket anyway. You can also avoid a conviction for this violation if you can show that the knife “is being transported directly to or from a place of purchase, sharpening or repair, packaged in such a manner as not to allow easy access to such knife while it is transported”. So, if you just bought a long kitchen knife from Bed Bath & Beyond, you can safely take it home so long as it remains in the package. There are various other exceptions for the four-inch blade rule that are rarely applied (see below).

But even knives with blades shorter than four inches can still get you in trouble if they are publicly displayed or worn. Subdivision (c) of NYC A.C. § 10-133 makes it illegal “for any person in a public place, street or park, to wear outside of his or her clothing or carry in open view any knife with an exposed or unexposed blade unless such person is actually using such knife for a lawful purpose as set forth in subdivision d of this section.” Basically, this means that should not carry your clip-on knife like this person.

If you have any more questions about these issues, call the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. They routinely represent people in summons matters throughout the city, and have had great success defending people charged with a variety of weapons crimes and violations.

The full text of the statute is below:
New York City Administrative Code Section 10-133

a. Legislative findings. It is hereby declared and found that the possession in public places, streets and parks of the city, of large knives is a menace to the public health, peace, safety and welfare of the people of the city; that the possession in public places, streets and parks of such knives has resulted in the commission of many homicides, robberies, maimings and assaults of and upon the people of the city; that this condition encourages and fosters the commission of crimes, and contributes to juvenile delinquency, youth crime and gangsterism; that unless the possession or carrying in public places, streets and parks of the city of such knives without a lawful purpose is prohibited, there is danger of an increase in crimes of violence and other conditions detrimental to public peace, safety and welfare. It is further declared and found that the wearing or carrying of knives in open view in public places while such knives are not being used for a lawful purpose is unnecessary and threatening to the public and should be prohibited. b. It shall be unlawful for any person to carry on his or her person or have in such person’s possession, in any public place, street, or park any knife which has a blade length of four inches or more. c. It shall be unlawful for any person in a public place, street or park, to wear outside of his or her clothing or carry in open view any knife with an exposed or unexposed blade unless such person is actually using such knife for a lawful purpose as set forth in subdivision d of this section. d. The provisions of subdivisions b and c of this section shall not apply to (1) persons in the military service of the state of New York when duly authorized to carry or display knives pursuant to regulations issued by the chief of staff to the governor; (2) police officers and peace officers as defined in the criminal procedure law; (3) participants in special events when authorized by the police commissioner; (4) persons in the military or other service of the United States, in pursuit of official duty authorized by federal law; (5) emergency medical technicians or voluntary or paid ambulance drivers while engaged in the performance of their duties; or (6) any person displaying or in possession of a knife otherwise in violation of this section when such knife (a) is being used for or transported immediately to or from a place where it is used for hunting, fishing, camping, hiking, picnicking or any employment, trade or occupation customarily requiring the use of such knife; or (b) is displayed or carried by a member of a theatrical group, drill team, military or para-military unit or veterans organization, to, from, or during a meeting, parade or other performance or practice for such event, which customarily requires the carrying of such knife; or (c) is being transported directly to or from a place of purchase, sharpening or repair, packaged in such a manner as not to allow easy access to such knife while it is transported; or (d) is displayed or carried by a duly enrolled member of the Boy or Girl Scouts of America or a similar organization or society and such display or possession is necessary to participate in the activities of such organization or society. e. Violation of this section shall be an offense punishable by a fine of not more than three hundred dollars or by imprisonment not exceeding fifteen days or by both such fine and imprisonment.

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.

At trial, Galluzzo conceded the facts of the arrest and that the defendant possessed the knife in question. The defense employed was simple, yet effective: the knife was not a switchblade.

Penal Law section 265.01 reads as follows:

§ 265.01 Criminal possession of a weapon in the fourth degree. A person is guilty of criminal possession of a weapon in the fourth degree when: (1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star”

The definition of switchblade is contained in Penal Law section 265.00(4).

4. “Switchblade knife” means any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.

Thus, in order to prove the defendant’s guilt of possessing a switchblade, the People had to prove that the knife recovered from the defendant was a “switchblade,” as set forth in the charging documents. The defense challenged the prosecution’s characterization of the knife in question as a switchblade from the outset. In his opening statement, Galluzzo asserted that “Every knife has two parts, a blade and a handle. And this button or notch . . . is, in fact on the blade. So when you’re opening this knife, you’ll see what you’re really pushing on is the blade and not he button on the handle.”

The arresting officer testified as to the details of the arrest, and reported to the jury that the defendant told him that he carried the knife for his protection, since he could not legally carry a gun. The officer testified that the defendant acted in a cool, calm and collected manner in dealing with the officers, and that he “gently” handed the knife over when asked to do so. The defense asked the arresting officer a series of questions about the location of the button on the knife, including the following:

Q: But the button is basically on the back of the blade itself so as the blade moves, the button is moving too?

A: Correct.

Later, when the arresting officer’s partner testified on cross-examination, the following colloquy took place:

Q: Now that little notch without opening it, that little notch on the knife that you are pushing, that’s made out of metal, right?

A: Yes.

Q: And it’s the same metal that the blade is made out of or appears to be, right?

A: Yes.

Q: And, in fact, that little notch is actually attached to the back of the blade, correct?

A: That’s correct.

Q: And that little notch because it’s attached to the blade swings to the other side of the knife when the knife pops open; right?

A: That’s correct.

Q: And then when you close the knife back up, that little notch that’s attached to the blade swings back through the handle of the knife back into the back where it is now, right?

A: That’s correct.

Later, in summation, Galluzzo highlighted the confusing nature of the statute in question:

“You know what, it seems almost absurd that we’re here. Why can’t someone just tell us whether this things is a switchblade or not. The legislature was supposed to tell us But, unfortunately, once again, we have been failed by our State legislature because we’ve been given a statute that’s poorly written and does not make clear what is and what is not a switchblade. As a result, people are getting arrested for possessing knives that they don’t realize are illegal, and you’re being brought here and forced to sit through a trial to sort this whole mess out.”

The defense went on to discuss the knife itself:

“You could see if you look up close at the knife that it’s all one piece of metal, that blade, and that blade has a sharp side and on the back it has this little notch sticking out. So are you pushing a button or device in the handle? No, you’re pushing the blade when you’re opening up the knife.” Galluzzo also challenged the characterization of the mechanism on the knife as a ‘button’: “You could compare that where — to what you think is a classic switchblade you may have seen in old movies like West Side Story, Twelve Angry Men or Rebel Without a Cause . . . where it’s the switchblades that people have. Maybe you’ve seen one in real life or maybe on TV, you would think of a long thin handle and right in the middle of that long thin handle, there is a button, a button you have to depress like on a computer keyboard, press that button in the middle of the handle and out pops the long, thin blade that’s about the same length as the handle itself . . . . That’s the kind of button that this statute is [] talking about. This is not a button that you’re actually pushing. What you’re actually pushing, again, is the blade itself.”

The jury presumably agreed with the defense’s interpretation of the statute, and returned a not guilty verdict.