New York Criminal Lawyer Blog
Even 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.
Setting aside other felony offenses, such as those for unlicensed firearms that are not loaded, including Criminal Possession of a Firearm, a class “E” felony pursuant to Penal Law 265.01-b, residents and visitors alike should familiarize themselves with the 2022 amendment or modification of the existing class “A” misdemeanor of Fourth Degree Criminal Possession of a Weapon.
Penal Law 265.01(9): Fourth Degree Criminal Possession of a Weapon
You are guilty of criminally possessing a ghost gun when not authorized to do so as a licensed firearms dealer or gunsmith, you possess a gun of this type knowing that it is a ghost gun. A class “A” misdemeanor, this offense carries a potential sentence of one year in a county jail (Rikers Island, Westchester County Jail, etc.)
Penal Law 265.00(32), (8-a), and 265.07: Defining Ghost Gun
As a preliminary matter, a ghost gun need not be a firearm. The statute, consistent with Penal Law 265.00(32), also encompasses rifles and shotguns. What makes these weapons different from others purchased from a dealer is that they lack a visible identification number, or some other demarcation required of manufacturers or importers. In other words, as reflected in Penal Law 265.07, the gun is not “serialized”.
“Serialized”, defined in Penal Law 265.00(8-a), is fairly straight forward and relies on Section 923 of Title 18 of the United States Code. That is, in pertinent part, to be “serialized” the weapon must be imprinted or marked with a visible identification number.
Lastly, if going from one definition to another wasn’t enough, Penal Law 265.07 dictates that if you are a licensed gunsmith or dealer, you must engrave or stamp any unserialized gun in your possession. Further, not only must you serialize the weapon, you, as an authorized dealer or gunsmith, must also register that gun to be fully compliant with the law. In other words, if you are not one of the select professionals adhering to the law, your possession is a crime.
Penal Law 265.01(9): The Last Word on Ghost Guns
By itself, possessing a ghost gun is a crime. Though “just” a misdemeanor, upon your arrest you will likely also be charged with felony Criminal Possession of a Firearm, Penal Law 265.01-b, in addition to Penal Law 265.01(9). Where things go from bad to worse, however, is when that weapon is loaded and violates another law such as being carried outside your home or place of business. If the ghost gun is a pistol or revolver, and it is loaded as a matter of law even without a bullet in the chamber, the offense can, and you should expect it will, quickly graduate to a violent felony. Unfortunately for you, even if you thought you were compliant, being unaware of the law is no defense.
Whether you are visiting New York or live in any part of the state, don’t up end your life and throw your liberty and career into jeopardy. Be smart and follow the law. Building or carrying ghost guns is a crime in any scenario. Equally important, do not forget…possessing a firearm without the specific permit to carry it in the specific location you are doing so will very likely land you in handcuffs and in a jail cell awaiting your felony arraignment.
To learn more about New York weapon crimes from knives, knuckles, and batons to revolvers, pistols, and ammunition, follow the highlighted links.
Saland Law is a criminal defense firm founded by Jeremy Saland, a former Manhattan prosecutor who served under Robert Morgenthau. Saland Law represents individuals accused of Penal Law Article 265 gun and weapon crimes throughout the City of New York, at Queens County Airports, and in Westchester, Rockland, and other suburban and metro-area counties.