New York Criminal Lawyer BlogEven before New York codified its “ghost gun” specific crime through Penal Law 265.01(9), any criminal lawyer, prosecutor, or judge would likely tell you that New York State had, and has, some of the strictest firearm laws on the books. In fact, possessing an unlicensed and loaded firearm outside your home or place of business, whether on your person, in your car, or even carried in the hard sided case you are checking your out-of-state licensed pistol at JFK or LaGuardia Airport in Queens, is a class “C” violent felony pursuant to Penal Law 265.03. Punishable by a mandatory minimum of 3.5 years in prison no matter if you have a conceal carry permit elsewhere and no intent to use it a criminally, Second Degree Criminal Possession of a Weapon is one of the most serious illegal gun offenses in the state but by no means the only one. With the proliferation of homemade guns, rifles, and shotguns, aka, “ghost guns”, constructed with frames purchased online or crafted from 3D printers, New York District Attorneys and police departments, including the NYPD, now have multiple weapons in their arsenal to enforce the law and ensure compliance with the criminal code.
Articles Posted in Weapon Possession
Understanding New York Penal Law 265.01-e & 265.01-d: Sensitive & Restricted Locations
New York, like other states, has its own criminal statutes that regulate the possession of guns. These offenses are generally found in Penal Law Article 265. While some have been on the books for decades, others are more recent additions. Two of these crimes, Penal Law 265.01-e, Criminal Possession of a Firearm, Rifle or Shotgun in a Sensitive Location, and 265.01-d, Criminal Possession of a Weapon in a Restricted Location, went into effect on September 1, 2022. Whether these class “E” felonies stand the test of time and legal challenges, criminal defense attorneys and everyday people residing in or visiting New York City, the Hudson Valley, or elsewhere in the state should have a basic understanding of these laws to best ensure they avoid arrest, prosecution, and as long as four years in prison.
New York Firearm Lawyer Secures Non-Criminal Violation & Future Dismissal for Two Out-of-State Licensed Gun Owners Charged with PL 265.03
Having both prosecuted individuals as a Manhattan Assistant District Attorney and defended clients arrested and charged with Penal Law 265.03, Criminal Possession of a Weapon in the Second Degree, as a New York gun possession lawyer, I have learned over the past 22 years that New York’s firearm laws can be unforgiving. For the uninformed, which there are many, the New York Penal Law does not differentiate between unlawfully possessing a loaded firearm – pistols, glocks, revolvers – outside your home or place of business that you illegally bought on the street or stole, from one otherwise lawfully possessed out of state but carried on your person in New York without the requisite license or permit here. Simply, even if there are other potential charges, in the eyes of New York law, there is no difference between holstering that back alley loaded gun in your waistband and walking around Brooklyn and declaring that same .9 mm to an airline representative or TSA agent, along with your out-of-state permit, before flying out of Queens’ JFK or LaGuardia Airport believing you are following proper protocols. Taken a step further, whether there is a bullet chambered in either scenario or the ammunition is in a case but not in the actual gun, the weapon may nonetheless be considered loaded.
With the above background in mind, Saland Law is pleased to share two separate results for clients arrested for Second Degree Criminal Possession of a Weapon, aka, CPW 4, in Manhattan.
ACD Dismissal of Firearm Possession, Dismissal of Allegations in Order of Protection Petition, & Presentation of Case to DA After NYPD Takes No Action
This past week proved busy for the attorneys at Saland Law PC and demonstrative of the multiple hats we wear as criminal defense lawyers, Family Court lawyers, and victim advocates. Secured a future dismissal and return of an heirloom firearm belonging to a client after a felony arrest? Yes. Successfully argued for the dismissal of multiple allegations in an Article 8 Family Offense petition seeking an Order of Protection? Yes, again. Successfully presented a case to a District Attorney’s Office for investigation and prosecution? Yes, once more.
When Possessing a Knife isn’t a Crime: Fourth Degree Criminal Possession of a Weapon and Utilitarian Objects with Non-Criminal Uses
If George Orwell’s satirical theory of equality in “Animal Farm” applied to the New York Penal Law, then all knives would be created equal even if certain knives were more equal than others. Fortunately, as any criminal lawyer knows, the Penal Law does not allow for such untenable situations where no matter the knife or blade, possession would always constitute a misdemeanor or “more equal” felony offense. That said, and as routinely addressed by defense attorneys, depending on the blade in question, such as a switchblade that is a per se violation of PL 265.01(1), some knives are automatically considered weapons while others mandate that they are both “dangerous” as prescribed by law and intended to be used in an unlawful manner. These latter violations fall under PL 265.01(2).
In a recent Manhattan Criminal Court case, a presiding judge found that a knife disguised as a pen, aka, a penknife, did not violate the law as pleaded in the accusatory instrument and, therefore, dismissed the case for a lack of legal sufficiency. Evidently, all knives really are not created equal.
Second Degree Menacing and Fourth Degree Criminal Mischief Dismissed on Motion of Prosecution: Client Falsely Accused of Threatening Another with a Firearm and Preventing 911 Call
While our client charged with Third and Second Degree Menacing and Fourth Degree Criminal Mischief cannot get back the months of his life lost to the criminal justice system, what started off as a bogus claim and an arrest of a federal law enforcement officer finally ended with his complete exoneration in a New York City Criminal Court. Although our client can now pursue the back pay he was denied during his suspension, as grateful as he was that the system “worked,” our client unfortunately witnessed firsthand how difficult it is when the system sees you as guilty even if the law is supposed to protect you with the presumption of innocence. Thankfully, after months of back and forth with a prosecutor who did her due diligence and, even if disagreeing, kept an open mind, pushing the case to a trial and rejecting an Adjournment in Contemplation of Dismissal was the final straw that broke the proverbial camel’s back of this unfounded case. A great effort – and even better resolution – for the criminal attorneys and former Manhattan prosecutors at Saland Law PC.
What is a “Dangerous Instrument” for the Purpose of Weapon Possession, Assault and other Crimes in New York
The term “dangerous instrument” is used throughout the New York State Penal Law as an elements of certain criminal charges, typically violent felonies such as Assault in the Second Degree, New York Penal Law 120.05(2), but for other misdemeanor crimes such as Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01(2). From the context of the criminal statutes in which the term is used, it is easy to understand that the term “dangerous instrument” is basically referring to the use of a weapon. But what qualifies as a weapon and how is it different from a “dangerous instrument?” Not a complete analysis of the law nor a substitute for a consultation with your criminal lawyer, the following helps answers this question.
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?
Can I Seal My Criminal Conviction for Weapon Possession: Applying NY CPL 160.59 to NY PL 265.01(1)
A crime that is routinely prosecuted in New York City, and likely elsewhere through the State of New York, is New York Penal Law 265.01(1), Fourth Degree Criminal Possession of a Weapon. More specifically, if you knowingly possess a gravity knife or a switchblade knife you are guilty of a class “A” misdemeanor. Because of the severity of the crime, its creation of a permanent criminal record as a result of a conviction, and the fact that what the State identifies as a gravity knife often results in regular people being charged with crimes they had no idea they violated, there are many offenders who should consider having their old criminal conviction for PL 265.01 sealed in accordance with New York Criminal Procedure Law 160.59. For that matter, whether you had metal knuckles, a slingshot, shirken, chucka stick or any other per se weapon, conviction sealing is an option to consider.
One of the problems with PL 265.01, and reason why it is an offense that you should seek to seal from your criminal record, is that on its face a conviction for any weapon offense has the worst possible connotation for and to a prospective employer. While one might argue a switchblade knife is often associated with a dangerous instrument, a gravity knife can be something as simple as a multi-tool purchased at a hardware store. While this blog does not address the merits of the law, the questions posed here are can you apply to have your conviction for NY PL 265.01 sealed with the passage of CPL 160.59 and is Fourth Degree Criminal Possession of a Weapon an eligible offense?
Understanding the Difference Between Second Degree Criminal Possession of a Weapon and Criminal Possession of a Firearm
New York State has numerous laws and crimes regulating the use and possession of firearms and other weapons. Whether one is supportive of these statutes such as the Safe Act or not, these laws are some of the most rigid and strict in the nation. While they are all codified in New York Penal Law Article 265, the crimes vary from class “A” misdemeanors to class “B” felonies. There is little dispute that the most common of these offenses is Fourth Degree Criminal Possession of a Weapon, New York Penal Law 265.01(1). However, the types of per se objects that qualify as weapons, including gravity and switchblade knives, may be serious, but not as significant as their firearm related brethren. Of these crimes, those likely prosecuted the most in New York City and at both LaGuardia and JFK Airport in Queens are Second Degree Criminal Possession of a Weapon, New York Penal Law 265.03, and Criminal Possession of a Firearm, New York Penal Law 265.01-b. With that in mind, this blog entry addresses some of the most significant differences between two crimes that are somewhat similar and regularly prosecuted, but drastically different in their potential sentence and punishment upon a conviction.