Criminal Possession and/or Disposal of a Weapon in New York
The state of New York has several laws, which cover the offenses for the criminal purchase/disposal of a weapon.
What is Considered a “Weapon” in New York?
New York has a very broad definition of a weapon. Weapons are defined in New York Penal Code Section 265.01. The statute lists over 20 specific items that could be considered a weapon.
The following are some of the most common items which are considered weapons under New York law:
- Machine guns
- Electronic stun guns
- Gravity knives
- Switchblade knives
Purchase of Weapons
The above items are always considered weapons under New York law, and possession of them is almost always an illegal offense. However, the purchase of certain weapons may be considered a separate offense depending on the status of the person that makes the purchase.
- For example, an antique gun is not by itself defined as a prohibited weapon under the law, and generally, it would be legal to purchase and own in the state of New York. However, if a person who was previously convicted of a felony purchase that same antique gun, that person is at risk for prosecution for the criminal purchase of a weapon.
The prohibition of the purchase of a weapon may be based on the actual purchaser or another person if it can be proved the purchase is on behalf of another person who would be prohibited from possessing the weapon. For example, if a person who is not restricted from purchasing a firearm but actually buys it for a person who has been adjudicated incompetent by a court to own a firearm, the legal purchaser has now committed the criminal offense of illegal disposal of the weapon to a prohibited person.
Criminal Purchase/Disposal of a Weapon in New York
The criminal purchase/disposal of a weapon in New York is established under New York Penal Code Section 265.17 establishes the class D felony offense and defines the elements required for a conviction.
The following elements are the facts that must exist in order for a prosecution to find you guilty of the offense:
- The knowledge that you are prohibited from possessing a firearm, rifle, or shotgun.
- The prohibition is due to a prior conviction or another disability which would render you ineligible to possess the weapon
- The purchase of a prohibited firearm, rifle, or shotgun
- From another person.
The most important element of this offense is your status in the State of New York. The illegal purchase/disposal of a weapon in New York requires that you have a prior felony conviction or otherwise ineligibility
What exactly makes you ineligible to possess a weapon or what offense convictions are disqualifying?
The two primary types of convictions that prohibit a person from purchasing a weapon are felonies and domestic violence offenses. Another disqualifying status is if you were involuntarily committed to a mental health facility or if a mental health professional informs the state that you are a danger to yourself or others. It is important to remember that the state must prove that you knew your status.
- For example, if Joe voluntarily checks in to a mental health facility and a mental health professional informs the state that Joe is a danger to others, he is prohibited from possessing a firearm.
However, if Joe was never informed that the mental health professional reported him to the state, and he purchases a firearm, he has not violated Section 265.17 because he did not have knowledge of his status.
Yet, if Joe was involuntarily committed to the mental health facility (and assuming he knows this fact), any purchase of a firearm will be in violation of Section 265.17 and Joe is at risk for being convicted of a class d felony.
New York Penal Code Section 265.01
While the criminal purchase or disposal of a weapon is a serious offense on its own, it is important to keep in mind that this offense typically is charged along with the criminal possession of a weapon. While the criminal purchase/disposal of a weapon requires the element of knowledge of your status, the criminal possession of a weapon is a strict liability offense.
New York Penal Code Section 265.01, which establishes the lowest level criminal possession of a weapon, does not have an element includes knowledge; that possessing an illegal weapon, regardless of knowledge of its legality, is a violation of the law. Yet, the law is written and has been clarified by court cases to be a strict liability law.
- The case, People v Grillo, 15 A.D.2d 502, affd 11 N.Y.2d 841 defines the law as “the voluntary, aware act of the possession of a firearm, with the additional feature of operability of the firearm.”
This means that the state does not need to prove any intent or understanding of possessing an illegal weapon. Instead, the state merely has to prove that you knowingly possessed the weapon and that weapon is defined as prohibited under the law
Criminal Possession of a Weapon
The majority of laws involving the criminal possession of a weapon in the state of New York are found under New York Penal Law section 265. Section 265.01 sets out the legal definition of the 4th-degree criminal possession of a weapon in the state of New York.
Possession of an illegal weapon is a strict liability offense for the following specific weapons: any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sandbag, sandclub, wrist-brace type slingshot or slingshot, shirken or “Kung Fu star.”
What are the weapons considered illegal to possess in the State of New York?
In addition to the weapons that are always illegal to possess in the state of New York, the law also limits certain items of weapons if the state can prove you meet the additional element of intent to use the weapon against another person. The weapons that violate this portion of Section 265.01 include any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument.
- For example, if Joe possesses a large dagger in his home that he has on display as a collector’s item, Joe does not meet the requirements for the criminal possession of a weapon.
However, if Joe has that same dagger in his car and intends to use it against another person in a road rage incident, Joe has now met all the requirements to be convicted of the criminal possession of a weapon.
Firearms and various types of guns are also weapons regulated under Section 265.01. Any weapon defined as a “firearm” is always illegal to possess unless that person is licensed to possess it or to serve in a law enforcement/military capacity. Possession of a firearm is a violation of the statute regardless of the intent in using it or knowledge that the firearm is illegal.
Other guns not defined as a firearm may be possessed legally unless one of the two additional elements are present. These two elements include the status of the person possessing the weapon (convicted felons and persons found incompetent by a court of law) whom may not legally possess a gun or if the gun is possessed by a person who intends to use it against another to inflict bodily harm.
- For example, if Joe has not previously been convicted of a felony and he possesses a fully functional shotgun with the intent to go hunting (with a hunting license of course!) within the state of New York, he can not be charged with the possession of an illegal firearm.
However, if Joe has previously been convicted of a felony or if he intends on using that shotgun against the next-door neighbor he does not like, Joe’s possession of that same shotgun is now illegal, and he can be convicted under Section 265.01 for possession of an illegal weapon.
Felony Criminal Possession of a Weapon in New York
While Section 265.01 establishes the basic elements of the criminal possession of a weapon, Section 265.01 is a level A misdemeanor. Sections 265.02, 265.03, and 265.04 outlay the elements for felony-level criminal possession of a weapon.
Criminal possession of a weapon charge in New York may be elevated to a level D violent felony if the elements of Section 265.01 are met and any of the following elements are also met:
- The person possessing the illegal weapon and has previously been convicted of a crime.
- The person possesses a machine gun, any explosive or incendiary bomb, bombshell, a firearm silencer, assault rifle, or large capacity magazine.
- The person possesses a firearm, shotgun, rifle, or machine gun which has been altered so the weapon cannot be easily identified (typically by removal of the serial number)
- The person possesses 3 or more illegal firearms.
A good case which outlines how this offense is typically stacked with the misdemeanor offense of the criminal possession of a weapon in New York is:
- People v Hughes 2013, NY Slip Op 07654, (Court of Appeals). In this case, a citizen of New York named Hughes was caught with a handgun in his home. Unfortunately for Mr. Hughes, he did not have a license to possess the handgun, and he had also previously been convicted of a misdemeanor resisting arrest.
Hughes attempted to challenge the law based on an argument that it infringed on his second amendment right to bear arms; however, this argument failed. Instead, the court upheld his two convictions.
The first conviction was for misdemeanor possession of a weapon under Section 265.01. He was also convicted of felony possession of a weapon because he had previously been convicted of resisting arrest. He was sentenced to three and a half years in prison based on both convictions.
What are the other sections of Section 265?
Section 265 also has two more sections which are even higher-level felonies and have additional elements required for a conviction.
- Section 265.03 lists specific items for which possession (with the intent to use against another person) could result in a level C felony. These items include a machine gun, a loaded firearm, a disguised gun, or possession of 5 or more firearms. Additionally, a person could be found in violation of this section if they have a loaded firearm outside of their home or place of business.
- Section 265.04 is a level b violent felony, which can be met in two scenarios. If a person possesses an explosive material with the intent to use against another person or property or if a person illegally possesses ten or more firearms, they may be charged with a violation of Section 265.04.
As we discussed in the case of Hughes, it is not uncommon for the state to charge multiple levels of the violation for the criminal possession of a weapon. For example:
- Let’s say Joe has a large collection of weapons, which includes 12 firearms, 2 machine guns, and a large capacity magazine, and he intends to use them against a rival down the street. Joe is at risk of being charged with all four levels of the criminal possession of a weapon. 265.01 could be charged because he is in possession of a firearm.
Section 265.02 could be charged because he owns a machine gun. Section 265.03 could be charged because he intended to use his machine gun against his rival. Section 265.04 could be charged because he owns more than 10 firearms. As you can see, one individual can quickly rack up multiple charges based on the facts meeting the elements of multiple parts of Section 265.
Aggravated Criminal Possession of a Weapon
Another related offense to the criminal purchase/disposal of a weapon in New York is found under New York Penal Code Section 265.19. This section covers the aggravated criminal possession of a weapon, which is classified as a level C felony. This offense is an add-on offense to Section 265.03, the criminal possession of a weapon in the second degree.
One of the following additional elements must also be met in order to be convicted of aggravated criminal possession of a weapon offense:
- Commission of a violent felony while possessing the illegal weapon.
- Commission of a drug trafficking felony while possessing the illegal weapon.
As you can see, the two situations where the aggravated possession of a weapon may be charged is during the commission of another felony. Most notably, the state has specified drug trafficking offenses as one of the qualifying offenses.
What must be the underlying weapons offense?
Remember, the underlying weapons offense must be the criminal possession of a weapon in the second degree, which requires possession of a machine gun, a loaded firearm, a disguised gun, or possession of 5 or more firearms, AND the intent to use one of those weapons against another.
To see how this may be charged, let’s say Joe owns an illegal firearm that he carries with him loaded. Joe carries the firearm in his waistband and tells an informant he intends to use the weapon against another person during a drug transaction. The informant tells the police about Joe’s plan, and when Joe goes to make the drug transaction, a sting operation arrests Joe.
Joe has met all of the elements for the aggravated criminal possession of a weapon: Joe has an illegal firearm, which is loaded. He has told someone he intends to use it during a drug transaction. Joe was caught while attempting to make the drug transaction.
Criminal Possession of a Weapon on School Grounds
The state of New York, like most states, has also created a specific law to criminalize the possession of a weapon on school grounds. This law, found in Section 265.01A, follows the similar pattern of criminal possession of a weapon element but also adds the location of the possession as a required element of the offense. The elements of the offense are as follows:
- The knowing,
- Possession of a rifle, shotgun, or firearm,
- In or upon a building or grounds used for any educational purposes,
- Without the permission of the school.
The law does allow some exceptions to this.
- For example, there is a carve-out for forestry land owned by the State University system, for legal hunting.
Again, this violation is typically stacked upon other illegal weapon possession charges and generally serves to add additional charges for investigators and prosecutors to use against those charged with weapons offenses.
- For example, if Joe, who is carrying an illegal firearm, loaded, with the intent to use it against a rival, while making a drug transaction happens to make the drug transaction in a park attached to a school, he has now committed the offense of the criminal possession of a weapon on school grounds.
This is a level E felony, which Joe may be charged with, along with a host of other charges under Section 265.
Penalties for Violating the Criminal Purchase, Disposal, or Possession in New York
The criminal purchase/disposal of a weapon in New York is a d level felony but is often paired with possession offenses. Due to New York’s various weapon possession laws, the potential penalties are widely varied and may range from a simple misdemeanor to extremely harsh high-level felonies.
For a violation of 265.17, the criminal purchase or disposal of a firearm, you are likely to face the charges as a class D non-violent felony. Penalties for a class D non-violent felony may include probation up to four years in prison and fines depending on the circumstances. (The minimum penalty for a felony is one year in jail, however certain offenses may not include jail time depending on the facts of the offenses and the offender’s criminal history.)
Obviously, the penalties can be enhanced based on the offender’s own circumstances and history. The following factors may be used by a Judge to determine whether to decrease or increase the potential penalties:
- The criminal history and background. If an offender has a prior history of offenses, particularly violent offenses or prior weapon purchase/disposal convictions, they are much more likely to face the higher end of the potential sentencing range or even face a higher level felonies than a first time offender.
- Use of the weapon during a crime. If an offender possessed an illegal weapon while committing another crime, they are much more likely to face the higher end of the sentencing range and risk facing more severe charges.
- Location of the offense. While New York has state laws for the possession of a weapon, local municipalities may have their own restrictions as well. New York City, in particular, has some of the strictest gun control laws in the United States, so possession of a firearm in New York City may violate both state and local laws.
Consequences for Violating the Criminal Purchase, Disposal, or Possession in New York
Prison time, steep fines, and probation are most likely to occur should you be convicted of a weapons offense in New York. While these penalties are harsh in themselves, having to carry the status of a convicted felon can affect you for the rest of your life.
What makes a felony status most troubling is the fact that it will follow you for the rest of your life and may affect your ability to obtain employment, professional licenses, housing, or any number of everyday requirements.
What is worse, often these offenses are also often used in connection with other crimes and help to build the cases for prosecutors for those charged with stacked offenses, giving leverage to the prosecution in order to obtain plea deals or convictions for the maximum penalty against you.
Call us for help
If you are charged with the criminal purchase or disposal of a weapon in New York, it is incredibly important to make sure you are represented by a competent and experienced attorney who knows how to obtain the most favorable results possible best.
If you have any questions or concerns about any charges relating to the purchase or disposal of a weapon, we encourage you to contact us and speak with an attorney. All discussions about your case with one of our criminal defense attorneys are confidential.
We have local criminal law offices in your area with experienced lawyers who have obtained favorable outcomes for countless individuals facing similar charges.