Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 265.03, is unquestionably one of the most serious criminal charges that an individual can face in NYC or anywhere in New York. That is right. Even if you have a permit in Colorado, Georgia or Alabama, if you possess than firearm in a hotel room in Manhattan or at JFK or LaGuardia Airports, the crime has still been committed if you do not have a permit in New York. The New York criminal defense attorneys at Crotty Saland PC, have not only successfully represented clients charged with possessing loaded guns, but prosecuted individuals charged with this crime as Assistant District Attorneys under Robert Morgenthau. The following is a “primer” for those not familiar with this offense and the strict liability it seems to impose on the accused.
A person is guilty of Criminal Possession of a Weapon in the Second Degree (NY PL 265.03) when:
(1) with the intent or purpose to use the firearm (handgun, pistol, revolver, etc.) you possess a (a) machine gun, (b) loaded firearm (loaded has a much more liberal legal definition than bullets physically in a gun) or (c) a disguised gun; or
(2) you possess more than five firearms (it can be different types such as revolver, pistol, etc.)
(3) you possess a firearm that is loaded (intent to use unlawfully not required!!). Generally, there is no felony if the possession is in your home or place of business. New York Criminal Possession of a Weapon in the Second Degree is a C violent felony punishable by a minimum of three and on half years and up to fifteen years in state prison.
Make no mistake, a conviction for this offense will land you behind bars for at least a few years to well over a decade. While intent to use the firearm unlawfully is an element of NY PL 265.03(1), it is not an element or requirement under NY PL 265,03(3). In other words…just having the loaded firearm (the law does not actually require the bullets to be in the chamber/cartridge/cylinder) without a permit outside your home or place of business without the slightest malicious intent is punishable by at least three and one half years.
Although the statute is very clear and prosecutors are often unsympathetic to people carrying guns without permits, there still may be a defense that you can set forth. Did the police search you properly? Was the gun legally “loaded?” Is the possession based on a legal presumption? Are there mitigating circumstances? Did you possess the firearm in an area airport and properly checked it?
As stated above, Crotty Saland PC has had tremendous success representing clients charged with possessing loaded firearms. Our clients have not only benefited from our experience, but we have been legal analysts and quoted on gun crimes in the national, regional and local media from Sports Illustrated Online to the New Jersey Star-Ledger and the AM-NY. If you are accused of a crime involving weapons, no attorney can guarantee a particular outcome, but we will unquestionably fight to protect your rights and freedom.
The New York criminal defense lawyers and former Manhattan prosecutors at Crotty Saland PC represent clients throughout New York City and the region.