Criminal Sale of a Firearm in New York

Criminal sale of a firearm is a felony under New York law and is committed when someone unlawfully possesses a firearm and sells or gives the firearm to another person. In other words, if you illegally obtain or possess a gun and transfer it to another, you may be committing criminal sale of a firearm.

Your possession of the gun may be “unlawful” for a number of reasons, such as: (1) the gun is not lawfully registered; (2) you have illegally obtained the gun; (3) you have committed a prior crime that prohibits you from possessing a gun or type of gun.

Criminal sale of a firearm can also be committed by asking another person to sell the gun on your behalf, or unlawfully possessing a firearm with the intent to sell. The following are examples of situations where charges of criminal sale of a firearm may be filed:

Kate steals a handgun and sells it to Scott.
Kate gives a handgun to Scott. Kate’s handgun possession license had been revoked.
Kate sells a rifle to Scott for cash. Kate has a prior felony and cannot possess a rifle or shotgun.
Kate steals a gun and holds on to it, intending to sell it later.
Kate, who is 18 years old, asks John, who is 15, to sell a stolen handgun to Tyler.

Statutes Defining Criminal Sale of a Firearm in New York

There are several statutes defining criminal sale of a firearm. Regardless of degree or type, criminal sale of a firearm is a felony under New York law. The most basic version is Criminal Sale of a Firearm in the Third Degree:

NY CPL § 265.11 – Criminal Sale of a Firearm in the Third Degree:

This occurs when a person who unlawfully possesses a firearm sells, exchanges, or gives the firearm to another. This is a Class D felony. Other statutes define variations of the basic definition, involving various aggravating circumstances that enhance the penalty.

NY CPL § 265.12 – Criminal Sale of a Firearm in the Second Degree:

This occurs when a person unlawfully sells, exchanges, or gives five or more firearms. This is a Class C felony.

NY CPL § 265.13 – Criminal Sale of a Firearm in the First Degree:

This occurs when a person unlawfully sells, exchanges, or gives ten or more firearms. This is a Class B felony.

NY CPL § 265.14 – Criminal Sale of a Firearm with the Aid of a Minor:

This occurs when a person, over the age of 18, unlawfully sells, exchanges, or gives a firearm to another with the help of someone under 16 years of age. This is a Class C felony.

NY CPL § 265.16 – Criminal Sale of a Firearm to a Minor:

This occurs when a person unlawfully sells, exchanges, or gives a firearm to another person who “reasonably appears” to be less than 19 and is not licensed to possess a firearm. This is a Class C felony.

The Elements of Criminal Sale of a Firearm

The “elements” of an offense are the things that the prosecutor must prove in order for you to be found guilty of this offense. Returning to the third-degree sale of a firearm offense, for a defendant to be convicted for this offense, all of the following must be true:

1. You must unlawfully possess a firearm, AND;

2. You must sell, exchange, or give a firearm to another, OR;

3. You must possess a firearm with the intent to sell it.

Each element is discussed briefly below:

Element #1: Unlawful possession of a firearm

This element is satisfied if you own or possess a firearm when you are not legally authorized to do so. Possession does not mean actual ownership, but to have physical possession or control over tangible property. People v. Robinson, 906 N.Y.S.2d 455, 457 (N.Y.C. Crim. Ct. 2010).

There are many reasons why your possession of a weapon may be against the law. Although we cannot address every possible reason in this article, the following are examples of unlawful possession of a firearm[1]:

Possession of unregistered firearms
Possession of a handgun without a permit
Possession of disguised firearms
Possession of stolen firearms
Possession of assault weapons, explosives, or exploding ammunition
Possession of a firearm by someone under 16 years old (with exceptions)
Possession of certain types of firearms, such as rifles and shotguns, by someone previously convicted of a felony or serious offense
Possession of firearms by someone certified as mentally ill or judicially adjudicated as incompetent

Some examples of cases include:

Kate, who has a prior felony conviction, keeps a shotgun in her car.
Kate owns an assault rifle.
Kate has not lawfully licensed to own a handgun.

Because unlawful possession is a pre-requisite for a criminal sale, a criminal sale charge is almost brought together with a criminal possession or similar charge. The positive is that, if you can prove that your possession of a gun was legal, you can defeat both charges.

Element #2: Unlawful sale, exchange, or transfer of a firearm

This element is satisfied by a physical transfer of a firearm.[2]

Some examples of cases include:

Kate gives a handgun as a present to Scott.
Kate sells a handgun to Scott for $5000.
Kate exchanges her gun for Scott’s.

Element #3: Possession with the intent to sell.

If you are caught in possession of a firearm, and there is evidence that you were planning on unlawfully selling, trading, or giving away the firearm to another person, you may also be found guilty of criminal sale of a firearm, although you never actually carried out the sale.

The prosecution must prove the intent to sell. However, if you possess five or more firearms, there will be a presumption that you intend to sell those firearms.[3]

Some examples of cases include:

Kate wishes to sell a stolen handgun in her possession and has told her friends that she intends to sell it.
Kate wishes to sell a stolen handgun in her possession and has solicited or offered to sell the handgun to others.
Kate possesses five or more stolen firearms. At trial, it may be presumed that she intended to sell those firearms, even without any proof of intent.

Related Offenses That Are Often Brought Together With Criminal Sale of a Firearm

As noted above, criminal sale of a firearm will rarely be charged by itself, because a pre-requisite for the crime is unlawful possession. You may also be charged with attempt or conspiracy to sell firearms criminally. If you are found in possession of other contrabands, such as drugs, you may also be with criminal possession or sale of those substances as well. Some of these crimes include:

NY CPL §§ 265.01-265.04 – Criminal Possession of a Weapon:

This occurs when a person possesses various dangerous weapons, including firearms. For example, persons with a history or adjudication of mental illness, prior felony convictions, or incompetency adjudications cannot possess a rifle or shotgun.

Prohibited firearms include disguised firearms and assault weapons. Criminal possession of a weapon can be a misdemeanor in the fourth degree, and up to a Class B felony in the first degree.

Example: Kate possesses a rifle disguised as an umbrella and sells it to Scott. Kate can be charged with both criminal sales of a firearm and criminal possession of a weapon.

NY CPL §§ 165.40-165.54 – Criminal Possession of Stolen Property:

This occurs when a person possesses property that she knows to be stolen, with intent to benefit herself or the return of the property to its true owner. Criminal possession of stolen property is a misdemeanor in the fifth degree, and up to a Class B felony in the first degree.

Example: Kate possesses a handgun she knows is stolen with an intent to sell it. Kate can be charged with both criminal sales of a firearm and criminal possession of a weapon.

NY CPL § 265.17 – Criminal Purchase or Disposal of a Weapon:

This occurs when a person knowingly purchases a firearm for someone who cannot lawfully possess a firearm, or knowingly sells, exchanges, or gives a firearm to someone who cannot lawfully possess a firearm. Criminal purchase or disposal of a weapon is a Class D felony.

Example: Kate sells a handgun to Scott, who she knows is mentally ill. Even if the prosecutor cannot prove that Kate was in unlawful possession of the handgun, Kate can still be found guilty of criminal disposal of a weapon.

Case Law Further Defining the Meaning of Criminal Sale of a Firearm

For first and second degree criminal sale of firearms, which enhances the penalty for selling a certain number of firearms, that number must be sold in a single transaction. In People v. Brown,[4] the court overturned a conviction because fifteen firearms had been sold across four transactions

Penalties[5]

Criminal sale of a firearm in the third degree is a class D felony, with a maximum sentence of 7 years.

Criminal sale of a firearm in the second degree is a class C felony, with a maximum sentence of 15 years.

Criminal sale of a firearm to a minor and criminal sale of a firearm with the aid of a minor are both class C felonies, with a maximum sentence of 15 years.

Criminal sale of a firearm in the first degree is a class B felony, with a minimum sentence of one year and a maximum sentence of 25 years.

Sentencing Enhancements

As discussed above, the base criminal sale of a firearm in the third degree can be enhanced by the following factors:

If you unlawfully sell five or more firearms, you can be charged with second-degree sale of a firearm, and the maximum sentence will increase by 8 years.

Likewise, if you unlawfully sell a firearm to a minor or through the aid of a minor, you can be charged under the appropriate statutes, and the maximum sentence will increase by 8 years.

If you unlawfully sell ten or more firearms, you can be charged with first-degree sale of a firearm, and the maximum sentence will increase by 18 years.

Additionally, your sentence can significantly increase if you have a prior felony conviction. For example, if you are found guilty of third-degree sale of a firearm, a class D felony, someone with no prior felony offense could receive no jail time.

However, a second felony offender will receive at least a two-year sentence. Under New York’s three-strikes law, someone with two prior felony convictions will face at least a 15-year sentence for the same offense.

A felony conviction also has various other collateral consequences. They include:

Reputational harm and loss of job
Time and money spent defending yourself in court
Loss of gun ownership rights
Potential deportation if you are an immigrant
Inability to obtain job-related licenses and certifications.
Increased sentence for future convictions

Navigating the relevant sentencing rules is extremely consequential. You should retain and consult with an attorney as soon as possible to understand your sentencing risk should you be found guilty of an offense.

Legal Defenses to Criminal Sale of a Firearm

There are several powerful defenses that a skilled attorney can use to minimize your risk and win an acquittal.

Defense #1: Lawful Possession by Seller

You cannot be found guilty of criminal sale of a firearm if the prosecution cannot prove that you or cannot lawfully possess a firearm, even if you know that the buyer cannot lawfully possess a firearm.

Example: Kate sells a handgun to Scott. Kate is licensed to carry a handgun. Kate can argue that she cannot be found guilty of criminal firearms sale.

Defense #2: Lack of criminal intent or knowledge

One of the elements that prosecution must prove is that you must be aware of your unlawful possession. In addition, if you have not actually sold or transferred the firearm, the prosecution must prove that you possessed the firearm with the intent to sell it.

A skilled attorney can make the case that, based on the evidence, you did not intend or know the criminal nature of your actions.

Example: Kate sells a rifle to Scott. Unbeknownst to her, the rifle is, in fact, an assault rifle which she cannot lawfully possess. Kate can argue that she lacked the necessary criminal intent or knowledge that the sale was criminal.

Defense #3: Entrapment

If you were induced by a police officer, agent, or someone working for the police to sell the weapon you may be entitled to the entrapment defense.[9] Your attorney would have the burden of proof that you would not have committed the offense if you had not been induced.

Example: Scott, a 15-year old undercover agent, persuades Kate into selling him her rifle. Kate may be entitled to acquittal if she can prove that she would not have sold her rifle to Scott had he not solicited her to sell it.

Call Us For Help

As this article suggests, criminal sale of a firearm is a complex offense with serious consequences. For questions about this offense, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us.

We have local criminal law offices in your area.