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NYC Firearm & Gun Arrests: Can You Get Your Firearm or Gun Back from the Police if it was Seized After Your Arrest at JFK or LaGuardia Airports

Among many concerns that someone arrested for possessing a loaded (or unloaded) firearm, pistol, revolver or similar gun at a New York City airport may face, is how, if at all, the firearm can be returned subsequent to a resolution of the criminal case. Whether you are charged with a misdemeanor gun possession charge at New York’s JFK Airport for possessing an unloaded firearm without any ammunition (New York Penal Law 265.01Criminal Possession of a Weapon in the Fourth Degree) or you are arrested for a felony gun possession at LaGuardia Airport for possessing a loaded firearm (the bullets need not actually be in the gun) and charged with Criminal Possession of a Weapon in the Second Degree (New York Penal Law 265.03), the likely answer to this questions is fairly clear. As part of the potential plea, offer or even non-criminal disposition, the Queens County District Attorney’s Office is not going to return that firearm back to you even if it was lawfully owned, registered and permitted in your home state. A case directly on point is the Matter of the Application of Shahin Khoshneviss v. the Property Clerk of the New York City Police Department, 2010 NY Slip Op 30299(U).

In Khoshneviss, the former defendant sought the return of his .45 caliber firearm and magazine clip that the New York City Police Department vouchered. The NYPD came into possession of the firearm after Port Authority Police Officers arrested him at LaGuardia Airport. Like many “regular” and law abiding citizens, Khoshenviss had declared his firearm for transportation on his flight to California from New York City. Ultimately, prosecutors charged Khoshneviss with Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. The former felony is punishable by a minimum of three and one half years in prison while the latter misdemeanor is punishable by no more than one year on Rikers Island. Fortunately, Khoshneviss was not convicted of either a misdemeanor or felony, but pleaded instead to a non criminal violation of Disorderly Conduct.

With this non criminal plea, Khoshneviss sought the return of his firearm. However, the NYPD advised Khoshveniss’ criminal lawyer that the firearm was considered contraband because the defendant did not have the legal permits and licenses to possess the weapon within the borders of NYC. As such, the weapon would be destroyed. In response, Khoshveniss’ attorney sent an original invoice for the gun and asserted its legal ownership outside New York and that the firearm is not contraband and is protected under 18 USC § 926A (Interstate Transportation of Firearms).

In finding against the return of the firearm, the court made the following determination:

“Here, the rules governing the return of property by the Property Clerk define the term contraband as ‘property the mere possession of which is prohibited under federal, state or local law. Property shall not be deemed to be contraband merely because it has been held as evidence or for custodial safe-keeping, or because it may be suspected or believed to be unlawfully obtained, stolen or the proceeds or instrumentality of a crime’ (38 RCNY § 12-31). In New York, possession of a firearm is a criminal act, unless one holds a license to so possess, pursuant to Penal Law § 265.20(a)(3) and Article 400 (see People v Abdullah, 23 Misc 3d 232 [2008]; People v Zabar Lynch, 2008 NY Misc LEXIS 4587, 240 NYLJ 15 (July 15, 2008). It is undisputed that Mr. Khoshneviss is not licensed to possess a firearm in New York. Therefore, the subject firearm constitutes contraband, and its return would be improper (see Sea Lar Trading Co. v Michael, 94 AD2d 309, 315-316 [1983]; People v Didonna 124 Misc 872 [1925]).”

While a return of your legally owned firearm is likely an important and personal issue to anyone accused of a weapon crime, it certainly pales in comparison to ensuring their criminal case is resolved appropriately. Is this case going to provide your New York criminal lawyer or New York firearm and gun attorney the guidance as to how to “beat” a airport gun case? No. However, it is one worth keeping in your legal arsenal.

To learn about New York weapon and firearm laws and crimes, please review Crotty Saland PC’s New York Weapon Crimes section where information is broken down by statute and type of weapon possession. Further, a review of the NewYorkCriminalLawyerBlog.Com (also linked through the weapon section of the website) also provides ample information ranging from analysis of statutes and legal decisions.

Crotty Saland PC is a New York criminal defense firm established by two former Manhattan prosecutors. The New York criminal defense attorneys and firearm possession lawyers at Crotty Saland PC represent clients in all weapon related offenses and charges in the New York City region.

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