Criminal Possession of a Weapon in New York

What does it mean to possess a weapon criminally?

To state it simply, criminal possession of a weapon is when an individual is in possession of a forbidden weapon, or that person is forbidden from possessing a lawful weapon.

Examples

Here are some ways that individuals may be found to be violating a criminal possession of a weapon law.

An individual buys a pair of nunchucks from a neighboring state and keeps them in his home for martial arts training.
An individual lawfully owns a shotgun but converts it into a sawed-off shotgun.
An individual who lawfully owned a set of antique firearms, but failed to register the firearms with New York’s 2013 registration requirements.
Not being a citizen of the United States and possessing a small pistol.
A curious teenager constructs a pipe bomb from blueprints found online.
A teacher that lawfully owns a .22 rifle and keeps it in the trunk of his vehicle without obtaining proper authorization.
A person objects to the state’s firearm licensing requirements and refuses to obtain a license for his shotgun.
A formerly convicted felon that in possession of an antique revolver.
A person who has been diagnosed as mentally unsuitable to possess a firearm, and borrows his friend’s rifle.
Any person who owns explosives, including grenades, or machine guns (except for very select individuals)
A person who lawfully owns a nine-millimeter pistol but intentionally removes the serial number.
A person has in his possession an unloaded firearm and commits an assault.

This list is not exhaustive. There is a multitude of ways to violate a criminal possession of a weapon law.

If you or a loved one has been charged with criminal possession of a weapon, please call our firm today. Our attorneys are knowledgeable and experienced. They can help you throughout the entire process.

I thought that we have the right to bear arms?

The 2^nd Amendment to the US Constitution states that citizens have the right to keep and bear arms. However, the courts have determined that states are allowed to create legislation concerning gun control in the interest of public welfare.

Also, if a weapon has the propensity for unlawful use or is extremely unusual and dangerous, it does not fall within the scope of what is protected by the 2^nd Amendment.

What are the laws in New York regarding criminal possession of a weapon, and what are the penalties?

New York has identified a variety of level of offenses when it comes to unlawfully possessing a weapon. New York also addresses weapons on school grounds and certain items used by individuals younger than 16 years of age.

Criminal possession of a weapon in the fourth degree

This law states that there are certain types of weapons that cannot be legal in your possession such as nunchucks, cane swords, switchblades, billy clubs, brass knuckles, etc. If you have one of these weapons and intend to use it against another person is also a violation of this law.

If someone is a convicted felon, mentally unfit, or not a US citizen and is in possession of a firearm, it will be a violation. Also, possessing explosive or armor-piercing ammunition with the intent to use such is also prohibited. However, the electronic dart gun and stun gun bans were recently ruled unconstitutional.

For example, Fred buys a pair of steel knuckles off of a website for self-defense. He receives them in the mail and places them in a nightstand next to his bed. The police lawfully search his home for an unrelated crime and find the metal knuckles. Fred can be charged with criminal possession of a weapon in the fourth degree.

This is a class A misdemeanor. This means that an individual facing a charge of criminal possession of a weapon in the fourth degree can face a maximum fine of 1,000 dollars and up to a year in jail.

Criminal possession of a weapon in the third degree

If a person has previously been convicted of a crime and commits criminal possession of a weapon in the fourth degree will be considered criminal possession of a weapon in the third degree. Also, possession of an explosive device, silencer, machine gun, disguised gun, defaced firearm, large capacity ammunition feeding device, three or more firearms, or an assault weapon will be criminal possession of a weapon in the third degree.

In addition, individuals who are in the commission of a violent crime, drug trafficking crime, or have been convicted within the last 5 years of a class A misdemeanor or felony, will be criminal possession of a weapon in the third degree.

For example, Tom drives to Colorado to purchase a large quantity of marijuana to use for himself and sell to his friends. Tom keeps an unloaded pistol in the glove box of his vehicle. Tom is pulled over for suspected DWI when traveling back into New York. Police lawfully search his vehicle and discover the unloaded pistol. Tom can be charged with criminal possession of a weapon in the third degree.

This is a class D felony. This means that an individual facing a charge of criminal possession in the third degree faces a maximum fine of 5,000 dollars (or up to twice the cost of the crime) and up to 7 years in prison.

Criminal possession of a weapon in the second degree

If a person possesses and intends to use a machine gun, a loaded firearm, or disguised gun against another person, it will be criminal possession of a weapon in the second degree. Also, if you have a loaded firearm outside their home or place of business or five or more firearms will be criminal possession of a weapon in the second degree.

For example, Jill has purchased 7 semi-automatic rifles for her newfound gun range without a proper license. During the initial inspection of the gun range, the weapons are discovered. Jill can be charged with criminal possession of a weapon in the second degree.

This is a class C misdemeanor. If an individual is charged with this, they face a maximum fine of 5,000 dollars (or up to twice the cost of the crime) and up to 15 years in prison.

Criminal possession of a dangerous weapon in the first degree

If a person possesses ten or more firearms or in possession of an explosive device intended to be used against another person or property, it will be considered criminal possession of a dangerous weapon in the first degree.

For example, Kirk constructs a pipe bomb that he plans to detonate against his ex-girlfriend’s car. After Kirk posts an ominous threat to his ex-girlfriend on Facebook, the police were alerted. The police locate the completed pipe bomb within Kirk’s basement. The pipe bomb along with the implied threat of property damage, Kirk can be charged with criminal possession of a dangerous weapon in the first degree.

This is a class B felony. This means that a charge of criminal possession of a dangerous weapon in the first degree, they could face a maximum fine of 5,000 dollars (or up to twice the cost of the crime) and up to 25 years in prison.

Criminal possession of a weapon on school grounds

If an individual possesses a firearm, rifle or shotgun on school grounds without authorization from the school, it will be considered criminal possession of a weapon on school grounds.

For example, Renee is a teacher at an at-risk high school and is frightened about the reports of school shootings. She decides to take the revolver that was willed to her after her father’s death and keep it in her locked school desk. She has her concealed weapons permit and prides herself on safe firearm handling.

However, she never gains permission from the proper high school authorities. It is discovered during a routine inspection of her classroom. Renee can be charged with criminal possession of a weapon on school grounds.

This is a class E felony. This means that an individual faces a maximum fine of up to 5,000 dollars (or up to twice the cost of the crime) and up to 4 years in prison.

Aggravated criminal possession of a weapon

If a person is guilty of criminal possession of a weapon in the second degree and commits a violent felony or drug trafficking, it will be considered aggravated criminal possession of a weapon.

For example, Dale burgles a home which results in an altercation with the owner and the owner sustaining a substantial physical injury. Dale did not use a firearm, but Dale did have an unlicensed loaded pistol in a holster while he was burgling the home. Dale is arrested shortly after the incident. He can be charged with aggravated criminal possession of a weapon.

This is a class C felony. This means that an individual can face a maximum fine of 5,000 dollars (or up to twice the cost of the crime) and up to 15 years in prison.

How to determine if you have an unlawful purpose of weapon?

It is important to note that each of these laws also comes with a responsibility to report convicted violations to federal authorities.

The law also establishes a standard of the presumption that states if you were in possession of items in certain conditions(i.e., presumed to sell firearms if you have more than five in your possession), you are presumed to have an unlawful purpose for that weapon.

Depending on the circumstances, an individual may be charged with crimes that have severe penalties. Some charges could lead to fines of 5,000 dollars (or double the cost of the crime) and up to 25 years in prison.

Are there any defenses to criminal possession of a weapon charge?

New York allows for many exemptions for individuals to not be in violation of the law. The exemption list is lengthy; however, if you did not have an official capacity that allowed you to carry a firearm, it is likely that you fall outside the list of exemptions.

The law also states if you were turning in your weapon to a proper authority such as a sheriff, police chief or commissioner, then having the weapon while turning it in will avoid charges. However, this will not absolve you of other charges if that weapon was involved in a crime or other circumstance elsewhere.

Also, individuals can assert that their 4^th Amendment rights if the weapon was discovered during an unreasonable search and seizure.

What have the courts said about criminal possession of a weapon?

Most often the courts have been asked if criminalizing the possession of a weapon unconstitutional infringes on the 2^nd Amendment. Also, there have been some that have argued that these laws and the firearm licensing laws violate our due process rights of having notice and an opportunity to be heard due to vague terms in the law.

Most of the time, the courts are reluctant to invalidate any laws that are meant to promote public safety even if there is some infringement on an individual’s right to bear arms. However, in the last decade, there has been some shift in views regarding state gun control legislation and the 2^nd Amendment. Only time will tell if this current shift will have a significant effect on these laws.

Here are a few cases that have determined certain components of New York’s criminal possession of weapon laws.

Libertarian Party of Erie County v Cuomo

In Libertarian Party of Erie County v Cuomo, a US district court dismissed a group of plaintiffs’ claims stating that New York’s criminal possession of a weapon in the third degree was unconstitutional since it burdened the right to bear arms.

A group of plaintiffs ranging from gun owners to members of a political party challenged the validity of New York’s criminal possession of a weapon and firearm licensing laws. Most had a valid firearm license at the time their claim was submitted and feared that their license could be revoked at any time. Only one plaintiff was denied a license to carry firearms.

The court said that most of the plaintiffs lacked standing (the right to bring a claim) since they suffered no real injury. If an individual simply disagrees with the law yet suffers no injury, they do not have a valid claim.

For the individual who was denied his license, the court determined that the law does infringe on the right to bear arms but does not substantially burden it. And the main purpose of the laws was to prevent individuals who were incapable of lawfully bearing arms. Burdens of time, expense, and questioning of close friends and relatives were not significant enough to invalidate New York’s laws.

The plaintiffs’ claims were dismissed, and it was determined that New York’s criminal possession of a weapon and firearm licensing laws were constitutional.

To read the case in full, please click here. Or copy and paste the link below.

https://www.leagle.com/decision/infdco20180111d81

People v. Morrill

In People v. Morrill, a New York appeals court upheld the conviction and sentencing of a man from Arizona and determined that the US Constitution allows state governments to create and enforce gun control legislation and that these laws do not impede on the constitutional right to travel.

The defendant, Morrill, was traveling from his home state of Arizona with his girlfriend. They were temporarily visiting New York when a domestic dispute resulted in Morrill’s arrest. Morrill was charged with criminal possession of a weapon in the fourth degree and the third degree.

After Morrill was indicted on these charges, he pled guilty and received a sentence of 5 years of probation. He appealed stating that New York’s criminal possession of a weapon law was unconstitutional since the 2^nd Amendment did not allow the states to adopt gun control legislation and placed an undue burden on the constitutional right to travel.

The court rejected both arguments stating that the right to keep and bear arms placed no limitation on the states from creating gun control legislation and that it is within the state’s power to enact such legislation. Also, the law does not burden the right to travel since the law’s restrictions have no relation to the right to travel. The court affirmed Morrill’s sentence.

To read the case in full, please click here. Or copy and paste the link below.

https://www.leagle.com/decision/19841028101ad2d9271481

Avitabile v. Beach

In Avitabile v. Beach, a US district court invalidated a portion of New York’s criminal possession of a weapon in the fourth degree.

The plaintiff, Avitabile, wanted to purchase a taser or a stun gun for non-lethal self-defense. However, New York’s criminal possession of a weapon in the fourth degree had a complete ban of those products, even within the home.

Avitabile argued that this “blanket ban” was an unconstitutional infringement of the 2^nd Amendment in light of recent US Supreme Court decisions. The state of New York argued that since there were adequate alternatives that Avitabile could use, such as pepper spray or a firearm.

The court agreed with Avitabile stating that any law that sweepingly prohibits a class of weapon protected by the 2^nd Amendment, it would be unconstitutional. Simply stating that some self-defense items exist that are legal is insufficient evidence to ban a certain class of weapon.

Therefore, the court invalidated the portions of criminal possession of a weapon in the fourth degree as it applies to stun guns.

To read the case in full, please click here. Or copy and paste the link below.

https://casetext.com/case/avitabile-v-beach-1

Are there other crimes that are often charged with criminal possession of a weapon?

While every set of circumstances that can result in charges of criminal possession of a weapon is unique, there are common charges that will accompany a charge of criminal possession with a weapon.

Many individuals will be charged with a crime connected to the weapon, especially if it was used to commit the crime. This can accompany charges of assault, prohibited use of a weapon, criminal use of a weapon, unlawful possession of certain ammunition feeding devices, unlawful possession of a large ammunition feeding device, and criminal sale of a firearm.

Federal law also prohibits certain individuals from possessing firearms and dangerous weapons and restricts individuals from transporting weapons across state lines. It also lists areas where weapons will be prohibited.

Who investigates criminal possession of a weapon?

There are a number of state and federal agencies that can be involved in criminal possession of a weapon charge. Most often, the New York Police Department (NYPD) will work with the Federal Bureau of Investigation (FBI), US Attorney’s Office (USAO), and the Bureau of Alcohol, Tobacco and Firearms and Explosives (ATF).

State and federal agencies often amend and create new rules to address a variety of issues, and it would not be unusual for multiple agencies to be involved in a single situation. For example, the controversy surrounding “bump stocks” has received a new regulation from ATF.

What will happen if I am convicted of a charge of criminal possession of a weapon?

Attached to every criminal conviction is a stigma that an individual is not trustworthy. This perception is not based on the circumstances of your case; it is based on the fact that you were convicted of a crime. This stigma can permanently damage careers, relationships, personal and professional opportunities, and may even affect your personal health.

Sometimes this stigma can stay attached even if all charges are dropped. You could be known as “that guy who was arrested for that crime.” The investigation may also cause you to lose work hours, incur heavy expenses and place a heavy burden on you and your loved ones as you are undergoing investigation.

Have I been charged with criminal possession of a weapon? What should I do?

Call us!

Our firm has attorneys have helped many clients just like you. They understand the law and know how to prepare the best possible defenses to serve your interests. We will work with you in your circumstances and help provide the best possible outcomes for you and your loved ones.

We can also help you understand the law and avoid being charged in the future. The severity of a criminal charge is difficult enough. You should not face these legal challenges alone. Please call our firm today for a free legal consultation.

Current events

US Soldier sentenced for the detonation of a chemical weapon that injured two people

Charge: Possession and detonation of a chemical weapon

Allegation: A US soldier created a chemical bomb and detonated it in the middle of a forest that injured two people.

In 2018, Ryan Keith Taylor, a US soldier, was sentenced to more than 11 years in prison after he created and detonated a chemical bomb.

According to the DOJ press release, Taylor had made a chlorine chemical bomb. He went to the forest near Fort Polk and detonated the device. He was found by other soldiers to be recording the detonation of the device.

Two investigators were severely injured after investigating the materials found at the detonation site which ended both men’s military careers. Taylor was sentenced to 135 months in prison.

To read the full press release, click here. Or copy and paste the link below.

https://www.justice.gov/opa/pr/us-soldier-sentenced-more-11-years-illegally-manufacturing-using-chemical-weapon

A gang leader and member are sentenced to more than 12 years in prison

Charge: Racketeering murder, accessories-after-the-fact, and weapons possession

Allegation: Both the gang leader and gang member were accessories to the execution of one of its members.

In late 2018, a gang leader and a gang member from the Aryan Circle gang were sentenced to more than 12 years in prison for being accessories-after-the-fact to racketeering murder and weapons possession charges.

According to the DOJ press release, David Wayne Williams and Richard Alan Smith witnessed the execution of one of their members at one of their “church meetings.” Williams was a gang leader, while Smith was a member.

They eventually pled guilty to the charges after a full investigation. Williams was sentenced to 157 months in prison while Smith was sentenced to 150 months in prison.

To read the full press release, please click here. Or copy and paste the link below.

https://www.justice.gov/opa/pr/aryan-circle-gang-leader-and-gang-member-sentenced-prison-being-accessories-after-fact

Multiple members of white supremacist charged at the end of a multi-agency investigation

Charge: Racketeering murder, narcotics distribution, firearms trafficking, weapons possession, assault, and kidnapping

Allegation: A gang known as the 1488s participated in a variety of illegal activity that included drugs, weapons, and murder.

According to the DOJ press release, in 2019, after a multi-agency investigation, 18 members of the 1488s gang, known for its white supremacy tenets, were arrested and charged for a variety of crimes including murder and firearms trafficking.

Many of the members committed a series of violent offenses to enter the gang and continued illegal activity for gain after entering the group. Some of the murders committed were especially violent in order to impress gang leaders.

To read the press release in full, please click here. Or copy and paste the link below.

https://www.justice.gov/opa/pr/multi-agency-investigation-results-charges-against-18-members-and-associates-violent-white

Over a dozen members of a California gang have been indicted

Charge: Drug trafficking, weapons possession, racketeering assault

Allegation: Members of the MS-13 gang engaged in assault, drug trafficking, and other illegal activities to gain profit.

In 2018, 16 members of the MS-13 gang were indicted on a variety of charges that included racketeering and weapons possession.

According to the DOJ press release, the MS-13 gang that is present across the nation and engage in a variety of illegal activities that range from a drug is trafficking to murder. These individuals were arrested and charged after a multi-agency investigation.

To read the press release in full, please click here. Or copy and paste the following link.

https://www.justice.gov/opa/pr/16-ms-13-gang-members-indicted-assault-and-drug-trafficking

Former transport officer indicted for sexual assault

Charge: Sexual assault, criminal possession of a weapon

Allegation: A former transport officer sexually assaulted three different prisoners

In 2018, a former transport officer, Eric Scott Kindley, was indicted on sexual assault and brandishing weapon charges.

According to the DOJ press release, Kindley had on three separate occasions sexually assaulted three female prisoners while they were in his custody. During two of the assaults, Kindley allegedly brandished his weapon to allow the sexual assaults to continue.

Kindley faces a minimum sentence of 25 years in prison.

To read the full press release, please click here. Or copy and paste the link below.

https://www.justice.gov/opa/pr/former-prisoner-transport-officer-indicted-sexual-assault-and-possessing-firearm-furtherance