Must a Firearm be Operable to Prove a Violation of Criminal Possession of a Weapon or Criminal Possession of a Firearm

Sometimes, if not routinely, a common sense or every day definition does not comport with those found in the New York Penal Law. Whether statutorily defined or established pursuant to legal precedent and decisions, what may seem clear to you may actually be quite different in a court of law. As your criminal lawyer can easily explain, in the eyes of the New York Penal Law, a loaded firearm does not require a bullet in the chamber, magazine, clip or, for that matter, physically in the gun at all. Instead, according to the law practiced in New York State criminal courts involving crimes such as Criminal Possession of a Weapon in the Second Degree, New York Penal Law 265.03, a loaded firearm is one that is capable of being loaded, for example, with bullets or ammunition in the same case. Despite what a layperson may think, the law treats these types of “loaded” pistols, revolvers, and other firearms the same. In fact, while a loaded firearm can violate PL 265.03, an unloaded firearm is a distinct crime of Criminal Possession of a Firearm, New York Penal Law 265.01-b(1), carrying a significantly lesser potential sentence upon conviction.

Keeping this common sense-criminal code dichotomy in mind, what about operability? Does it matter in the eyes of the criminal law – and the prosecuting District Attorney –  whether your gun can fire or discharge a bullet? Simply, is operability a mandatory element of any firearm crime found in New York Penal Law Article 265?

The answer to the above question is well established. Yes, operability is a key component and necessary one for the purpose of a New York firearm crime. In terms of elements found in the New York Penal Law, neither PL 265.03 nor PL 265.01-b(1) mandate operability. In substance, if you unlawfully loaded  possess a firearm outside your home or place of business or possess an unloaded firearm unlawfully, you are guilty of these crimes respectively. However, as noted by the Court of Appeals, New York’s highest court, in People v. Longshore, 86 NY2d 851 (1995), “[a]lthough the statute is silent on the point, it is now accepted that to establish criminal possession of a handgun the People must prove that the weapon is operable.”

Taking this a step further, an examination of New York State’s jury instructions for the crime of Second Degree Criminal Possession of a Weapon reveals that operability is a component that must be proven beyond a reasonable doubt. To be operable, the gun in question must be capable of discharging ammunition.

While you may be intrigued or completely disinterested in this legal component for gun crimes in New York, another question on point is knowledge of operability. Not addressed in this blog entry, but will be reviewed at a later date, does the law differentiate situations where the possessor of a firearm does not know that the firearm is operable from those where he or she is aware? Stay tuned…

To learn more about New York gun, weapon and firearm crimes, review the links here or go directly to Crotty Saland PC’s New York Firearm and Weapon Crimes information page.

Crotty Saland PC is a New York criminal defense firm representing clients in firearm and other weapon crimes throughout the New York City and Hudson Valley region. The founding New York criminal lawyers at Crotty Saland PC served as prosecutors in the Manhattan District Attorney’s Office prior to establishing the law practice.

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