Although the law does not provide for it, there is an objective difference between an possessing an unlicensed and unregistered loaded firearm and possessing an unlicensed and unregistered loaded firearm. Wait. What? In New York State, if you possess a loaded firearm outside your home or place of business and you are not registered or licensed to possess it, then you are guilty of Criminal Possession of a Weapon in the Second Degree, New York Penal Law 265.03. While there different provisions and subsections relating to specified conduct, the “catchall” language often prosecuted by District Attorneys throughout New York City is PL 265.03(3). More of a strict liability crime, a murderous, violent or criminal intent to harm, menace or threaten another person is not required. Merely, if you knowingly possess that firearm and it is loaded, a conviction will land you in prison for a minimum of three and one half years whether you are a physician, steel worker, or a stay-at-home mother of three. So, why do I say that there is an objective difference between an possessing an unlicensed and unregistered loaded firearm and possessing an unlicensed and unregistered loaded firearm? Simply, from a mitigation perspective, if you are toting around a loaded firearm with a bullet in the chamber while walking the streets of New York as opposed to following TSA procedures at LaGuardia or JFK Airport and declaring your otherwise legally registered or licensed firearm with the airline while its secured and broken down (ammunition not inside the firearm) in a hard sided case, there should be a vast difference. Fortunately for a recent client of Saland Law PC, our New York criminal lawyers were able to convince prosecutors of just that and were not merely successful in reducing the Second Degree Criminal Possession of a Weapon from a felony to a misdemeanor or even a violation, but to an ultimate dismissal if our client does not get rearrested over the next six months.
The above scenario plays itself out in New York City area airports time and time again. A traveler checks his or her firearm in Denver, Fort Lauderdale, Chicago, Phoenix, Dallas, Houston, Charlotte or any airport for that matter. In their home state, the traveler has the proper license or registration to carry or possess that revolver, pistol or other firearm. Upon checking the firearm – broken down with ammunition separated – the traveler comes to New York City’s JFK or LaGuardia Airport without incident. That is, without incident until he or she follows the same procedure to travel back home. Sadly, that’s when things get ugly. Whether the traveler is a lawyer, accountant or even a member of the military, the Port Authority Police Department arrests that traveler, charges him or her with PL 265.03 and sends him or her to Central Booking in Queens to wait to see a judge. Maybe bail is set, maybe it is not, but a routine day has become a nightmare for both travelers and their family.
A recent Saland Law PC client learned the hard way that at the time of the initial arrest, the police and prosecutors make no distinction between the illegally possessed firearm in the hands of a drug dealer and that of a traveler believing he or she is following the law. Fortunately, however, our client was an example of the former, followed otherwise proper procedure in checking the weapon and could provide documentation of its legal ownership in our client’s home state. The inquiry by prosecutors and the District Attorney’s Office did not, however, end there. Even out of state legal ownership without the same in New York is a crime. Why give an accused the benefit of the doubt?
After legal negotiations and discussions with law enforcement and obtaining numerous relevant documents, Saland Law PC put forth a compelling and impassioned mitigation defense. Certainly, there was no legal defense in this particular set of facts, but allowing the District Attorney’s Office to see our client and our client’s actions beyond a mere statistic and arrest number provided the basis for a downward departure from a debilitating and life altering arrest for Second Degree Criminal Possession of a Weapon to an adjournment in contemplation of dismissal whereby the case would be both dismissed and sealed after six months.
While this blog entry by no means reflects a reality that our New York criminal defense attorneys will obtain dismissals of firearm cases at LaGuardia Airport or JFK Airport each time, it is a testament to the Queens County District Attorney’s Office willingness to, when necessary, deviate from the law when a defendant’s criminal lawyer provides the basis and mitigating reasons why prosecutors should consider non-criminal resolutions and even dismissals in firearm cases. As an accused, there is not much of an alternative. Either you fight and put yourself in the strongest position with the best defense available or you accept a plea of some kind that may leave you forever blemished with a criminal record.
In the event you are charged with possessing a loaded or unloaded firearm at JFK or LaGuardia and you are either charged with Second Degree Criminal Possession of a Weapon (New York Penal Law 265.03) or Criminal Possession of a Firearm (New York Penal Law 265.01-b(1)) respectively, do your homework. Educate yourself on the consequences and the strict liability type standard. Consult with your criminal defense attorney so he or she can determine what is needed to expedite your case if possible and resolve it in the best way possible.