Are You at Risk of Prosecution?

You can be charged with criminal use of a firearm in New York, or one of several related charges, if you:

• possess a firearm while committing a violent felony;
• display what appears to be a firearm while committing a violent felony;
• fail to register your firearm(s);
• fail to receive proper licenses to handle firearms; or
• fail to follow safe storage rules if you live with someone prohibited from using firearms.

The reasons for receiving these charges range from the extreme to the mundane. Some of them involve violent crimes with the intent to harm, while others may be the simple mistakes of a careless legal gun owner.  Note the variance between some of these situations:

• You used a loaded shotgun to rob a gas station.
• You forgot to lock your hunting rifle in a gun safe.
• You got in a fight with a police officer while carrying a handgun in your waistband.
• You received a firearm as a gift but didn’t obtain a license before carrying it.
• You had a gun on your person while raping someone.
• You legally purchased an assault rifle twenty years ago but failed to register it by April 15, 2014.

Despite their diversity, these examples hardly scratch the surface. Many action and situations could lead to you being charged with criminal use of a firearm or one of its related crimes.

The Legal Definition of Criminal Use of a Firearm

There are several state statutes relating to criminal use of a firearm within New York Penal Law. These charges range from a Class A misdemeanor up to a Class B violent felony, depending on the circumstances of your case.

265.08 – Criminal Use of a Firearm in the Second Degree

This charge relates to possessing or displaying a firearm while committing a different Class C violent felony offense. You may receive this charge if you:

• possessed a loaded weapon from which a deadly shot could be discharged; or
• displayed what appears to be a pistol, revolver, rifle, shotgun, machine gun, or any other firearm;

while committing one of the following crimes:

• • 125.11 – aggravated criminally negligent homicide
  • 125.21 – aggravated manslaughter in the second degree
  • 130.67 – aggravated sexual abuse in  the  second  degree
  • 120.08 –  an assault on a peace officer, police officer, fireman or emergency medical services professional
  • 120.09 –  an assault on a judge
  • 120.06 – gang assault in the second degree
  • 121.13 – strangulation in the first degree
  • 140.25 – burglary in the second degree
  • 160.10 – robbery in the second degree
  • 265.03 – criminal possession of a weapon in the second degree
  • 265.08 – criminal use of a firearm in the second degree
  • 265.12 – criminal sale of a firearm
  • 265.14 – criminal sale of a firearm with the aid of a minor
  • 265.19 – aggravated criminal possession of a weapon
  • 490.15 – soliciting or providing support for an act of terrorism in the first degree
  • 490.30 – hindering prosecution of terrorism in the second degree
  • 490.37 – criminal possession of a chemical weapon or biological weapon in the third degree

OR while attempting to commit any of the Class B violent felonies listed under Criminal Use of a Firearm in the First Degree. This crime is a Class C violent felony.

265.09 – Criminal Use of a Firearm in the First Degree

This charge relates to possessing or displaying a firearm while committing a different Class B violent felony offense. You may receive this charge if you:

• possessed a loaded weapon from which a deadly shot could be discharged; or
• displayed what appears to be a pistol, revolver, rifle, shotgun, machine gun, or any other firearm;

while committing one of the following crimes:

• • 125.20 – manslaughter in the first degree
  • 125.22 – aggravated manslaughter in the first degree
  • 130.35 – rape in the first degree
  • 130.50 – criminal sexual act in the first degree
  • 130.70 – aggravated sexual abuse in the first degree
  • 130.75 – course of sexual conduct against a child in the first degree
  • 120.10 – assault in the first degree
  • 135.20 – kidnapping the second degree
  • 140.30 – burglary in the first degree
  • 150.15 – arson in the second degree
  • 160.15 – robbery in the first degree
  • 230.34 – sex trafficking
  • 255.27 – incest in the first degree
  • 265.04 – criminal possession of a weapon in the first degree
  • 265.09 – criminal use of a firearm in the first degree
  • 265.13 – criminal sale of a firearm
  • 120.11 – aggravated assault upon a police officer or a peace officer
  • 120.07 – gang assault in the first degree
  • 215.17 – intimidating a victim or witness in the first degree
  • 490.35 – hindering prosecution of terrorism in the first degree
  • 490.40 – criminal possession of a chemical weapon or biological weapon in the second degree
  • 490.47 – criminal use of a chemical weapon or biological weapon in the third degree

OR while attempting to commit:

• • 125.25 – murder in the second degree
  • 135.25 – kidnapping in the first degree
  • 150.20 – arson in the first degree.

This crime is a Class B violent felony.

265.01-b – Criminal Possession of a Firearm

This charge relates to possessing unregistered firearms. You may receive this charge if you:

• possess any firearm; or
• legally possessed a firearm before the effective date of the 2013 SAFE Act and knowingly failed to register it before the date.

The effective date of the relevant law depends on the type of firearm you possessed. For example, all assault weapons had to be registered by April 15, 2014.

This crime is a Class E felony.

265.45 – Safe Storage of Rifles, Shotguns, and Firearms

This charge relates to the improper storage of firearms. You may receive this charge if you:

• live with someone prohibited from owning firearms according to 18 U.S.C. S 922(g) (1), (4), (8) or (9); and
• know, or have reason to know, that they are prohibited; and
• own a firearm; and
• leave it out of your immediate possession; without first
• securely locking it in a safe capable of preventing an unauthorized person from accessing the firearm; or
• rendering it inoperable with a gun locking device.

There are limited exceptions in regards to specific individuals who are prohibited from owning firearms due to domestic violence charges – an experienced attorney would be able to discern whether your case meets the proper criteria.

Also note that these rules do not affect, impair, or supersede any special or local laws which have additional requirements for safe storage of firearms. NYC, for example, has stricter safe storage laws than most of the rest of the state. Failing to follow these safe storage guidelines is a Class A misdemeanor.

400.00(15) – Licenses to Carry, Possess, Repair, and Dispose of Firearms

This charge relates to the violation of any provision in section 400.00 of New York Penal Law – which involves licensing. You must receive proper licensing to do just about anything with a firearm. That includes, but is not limited to:

• carrying;
• concealed carrying;
• Disposing of;
• buying;
• selling; and
• transporting.

If your hands go anywhere near a gun in New York State, you probably need a license to do so.

Any violation of section 400.00 is a Class A misdemeanor.

Related Offenses

These charges may be brought in addition to, or in place of, charges for certain other associated offenses under Article 265 of New York Penal Law. These include:

Criminal Possession of a (Dangerous) Weapon in the Fourth, Third, Second, or First Degree

This charge is similar to criminal possession of a firearm, but is much more far-reaching and includes weapons such as switchblades, brass knuckles, and explosives. The degree of the charge depends on a variety of factors such as the type of weapon, the number of weapons, and your criminal record.

This is a Class A misdemeanor or a Class D, C, or B violent felony depending on the degree of the charge.

Criminal Sale of a Firearm in the Third, Second, or First Degree

This charge relates to illegally selling, exchanging, giving, or disposing of a firearm to another person. The degree of the charge depends on whether you are licensed to possess firearms and the number of firearms you sell or exchange.

Despite the name of the charge, you don’t need to profit off of any “sale” to be guilty of this crime. Giving a gun to a friend as a gift can be illegal without the proper licensing.

This is a Class D, C, or B violent felony depending on the degree of the charge.

Criminal Purchase or Disposal of a Weapon

This charge relates to illegally buying a firearm for yourself if you know you are prohibited from possessing firearms, or buying a firearm for someone else if you know they are prohibited from possessing firearms. You also cannot dispose of a firearm to a prohibited person – i.e., you can’t give them a gun you already own.

This is a Class D felony.

Who Detects, Investigates, and Prosecutes Criminal Use of a Firearm?

The detection, investigation, and prosecution of criminal use of a firearm and its related charges differ massively on a case-by-case basis. There are local firearm laws in several counties and cities within the state, so the specifics of your case will largely depend on the jurisdiction where you are charged with the crime.

For example,

Sample Case:

Let’s say you violated safe storage of rifles, shotguns, and firearms while living in Manhattan. This might be detected by the NYPD when the prohibited individual is caught possessing your firearm, and then investigated by the NYPD Detective Bureau.

The NYPD Legal Bureau might get involved. Finally, you might be prosecuted by the Manhattan District Attorney and go to trial in the Criminal Court of the City of New York.

If you violated safe storage in Suffolk County or Buffalo, you wouldn’t deal with a single one of those organizations and your case will look entirely different.

If you suspect you might be charged with any of these firearm-related crimes, don’t hesitate to contact experienced legal counsel. They will know how to handle your specific case. 

Statutory Penalties

The statutory penalties for criminal use of a firearm vary considerably depending on the specific charge(s) you receive. The penalties can include fines, prison time, or a combination of both.

Keep in mind that your criminal record is essential when it comes to sentencing. You may receive a lighter sentence if you have a spotless record, and a heavier sentence if you’re a repeat offender.

Criminal Use of a Firearm in the Second Degree

• This conviction is a Class C violent felony.
• The maximum fine is $5,000 or doubles your gain from committing the crime.
• The maximum prison sentence is fifteen years.

Criminal Use of a Firearm in the First Degree

• This conviction is a Class B violent felony.
• The maximum fine is $5,000 or doubles your gain from committing the crime.
• The prison sentence is a five-year consecutive sentence in addition to the underlying Class B violent felony conviction. The resulting maximum prison sentence is thirty years.

Criminal Possession of a Firearm

• This conviction is a Class E felony.
• The maximum fine is $5,000, and the maximum prison sentence is four years.

Safe Storage of Rifles, Shotguns, and Firearms

• The violation of these storage rules is a Class A misdemeanor.
• The maximum fine is $1,000, and the maximum prison sentence is one year.

Licenses to Carry, Possess, Repair, and Dispose of Firearms

• The violation of these licensing rules is a Class A misdemeanor.
• The maximum fine is $1,000, and the maximum prison sentence is one year.

Additional Consequences

• If you are convicted of criminal use of a firearm, or any of its related crimes, you may lose your right to own or possess guns in New York State legally
• As a convicted felon, your current gun licenses will be revoked. You will also be unable to apply for a new license – even after your sentence is served. The misdemeanor charges discussed on this page may also be grounds for losing your licenses unless you are a retired state police officer
• Losing your right to bear arms can be a big deal. If you are a casual gun owner, you may lose access to your favorite hobby or feel as if your family isn’t safe
•  If you are in the business of selling guns, or your job requires you to possess a gun, these convictions can ruin your entire livelihood.  However big or small of a role firearms may play in your life, you will lose legal access to them if convicted of these crimes.

It is possible to have your gun rights restored, but it is not guaranteed. You can apply for a Certificate of Relief from Disabilities during or after sentencing, or a Certificate of Good Conduct after several years of lawful behavior.

A judge can deny you either of these certificates as they see fit. The only way to guarantee you’ll keep your gun rights is to avoid these convictions.

Legal Defenses to Criminal Use of a Firearm Charges

Luckily for you, it is possible to fight these charges and win your case – with the right counsel. Experienced defense attorneys know how to challenge the prosecution and protect you in a court of law.

Here are some strategies a successful defense might use for different charges:

Criminal Use of a Firearm in the Second or First Degree

• Possession

Beyond a reasonable doubt, can the prosecutor prove that you possessed the firearm while committing the other crime? Perhaps they found the firearm near you, or near the scene of the crime, but they cannot definitively prove that you possessed it. They need to prove that you had access to the firearm and that you controlled it during the crime.

• Suppression

Was all of the evidence against you obtained legally? It is possible that police officers or other investigators got evidence without the following procedure. For example, maybe they opened your car’s trunk to find a firearm without your permission or a warrant. This evidence may be suppressed in a court of law.

Criminal Possession of a Firearm

• Possession

Beyond a reasonable doubt, can the prosecutor prove that you possessed a firearm? This might seem like a simple defense, but it is an effective one. Just because you are near a firearm does not automatically mean you possess it.

If a police officer finds a gun on the floor in an alleyway and you are the closest pedestrian, you aren’t automatically in possession of that gun via proximity.

• Culpability

If you failed to register an assault weapon before April 15, 2014, can the prosecutor prove that you knowingly failed to register it? This is one of the rare cases where “I didn’t know the law” can work as a valid legal defense. The prosecutor would need to prove that you knew about the registration date and decided to ignore it.

Safe Storage of Rifles, Shotguns, and Firearms

• Actual Innocence

Can the prosecutor prove you did not leave your firearm in a locked safe or that you did not use a gun-locking device? In other words, you can argue that you did not commit the accused action. Perhaps someone else stole the key for your safety or guessed the combination to your gun-locking device.

Just because someone else accessed your weapons, or could access them, does not mean you are automatically guilty.

• Culpability

Can the prosecutor prove that you knew, or had reason to know, that the person you were living with was prohibited from possessing a firearm? Maybe you just moved into an apartment and had no reason to suspect your new roommate has a criminal record.

You can argue that you had no reason to suspect you were living with someone prohibited from accessing firearms.

Licenses to Carry, Possess, Repair, and Dispose of Firearms

• Possession

Can the prosecutor prove, beyond a reasonable doubt, that you possessed a firearm? This defense keeps popping up with a good reason – it’s the best actual innocence argument for most firearm charges. You can’t do something illegal with a gun if you didn’t possess a gun in the first place.

There are many license-related rules in section 400.00, but violations of almost all of them can be fought with an excellent possession-based defense.

These are only broad suggestions. The best defense strategy will always be a unique one designed around your specific case by an experienced attorney.

Call us for help.

Don’t risk your future. These charges won’t go away on their own, and neither will the consequences if you’re convicted. Our criminal defense attorneys know how to help you avoid fines, prison time, and a lifetime ban on gun ownership.

For questions about criminal use of a firearm in New York, and to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us. We’re here to help you every step of the way.