The criminal possession of a firearm in New York consists of a wide variety of different laws. These laws may range from lower level misdemeanors to high-level violent felonies.  New York has some of the most strict firearm possession laws in the United States.  It is important to know that the state does not need to prove that you knew it was illegal to possess the firearm.

Instead, it is only required to prove you knowingly possess the firearm and your possession of the firearm is illegal.  For this reason, it is especially important to know the various laws of possessing a firearm in the State of New York.

While you may think that New York only criminalizes the illegal possession of a firearm, the laws are actually very fact-intensive and dependent on the surrounding circumstances.  Some examples of the different situations which affect the type of charge may include the following:

• Possession of ammunition or a loaded weapon may increase the severity of the type of criminal possession of a firearm charge.
• If the possession of an illegal firearm involves the actual use of that firearm, it may increase the severity of the type of criminal possession of a firearm charge.

• If the possession of an illegal firearm also involves its’ use during the commission of a crime, it may increase the severity of the type of criminal possession of a firearm charge.

Additional information

It should be noted that you can also be charged with multiple laws at the same time.  For example, you may be charged with the criminal possession of a firearm, the criminal use of a firearm, and for the possession of illegal types of ammunition, whether loaded or unloaded in an illegal firearm.  Understanding all of these different types of charges is key to protecting your rights.

New York Criminal Possession of a Firearm Statutes 

The majority of laws involving the criminal possession of a firearm 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 4^th-degree criminal possession of a firearm in the state of New York.  The following elements are the facts the state must prove against you to establish a charge of the criminal possession of a firearm:

• You were in possession of an illegal firearm (which has a specific definition),
• You were in possession of a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle loading firearm, AND you have previously been convicted of a felony or serious offense
• You are a person that the state has deemed not suitable to possess a rifle or shotgun, AND you refuse to yield them to police upon their demand.
• You possess a bullet designed to detonate on impact.
• You possess armor piercing ammunition, AND intend to use it against another person.

The legal definition of Criminal Possession of a Firearm

While the statutes establish a very basic definition of the criminal possession of a firearm, the elements have much more to their definition than specified in the statute.

Section 265.01 seems to only state the obvious; that possessing an illegal firearm is a violation of the law.  However, 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,  11 N.Y.2d 841 defines the law as “the voluntary, aware act of the possession of a weapon, with the additional feature of operability of the firearm.”  This means that the state does not need to prove any intent or understanding in possessing an illegal firearm.  Instead, the state merely has to prove that you knowingly possessed the weapon and that weapon is defined as a “firearm.”

• For example, if Bob purchases a firearm, which is legal in Pennsylvania but is an illegal firearm in New York and Bob knowingly brings the firearm in the state of New York in his pocket, Bob is in violation of 265.01.  Even if Bob does not know it is illegal in New York, he has violated the law. Keep in mind that an illegal firearm has a specific definition under New York law, which is found under section 265.00.  If in Bob’s case, he possesses a gun which does not fit the definition of a firearm, he cannot be charged with the possession an illegal firearm.

Charged with Possession of a Firearm

Another way to be charged with the 4^th-degree criminal possession of a firearm in New York

Is the possession of a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle loading firearm AND you have previously been convicted of a felony or serious offense. This section of the violation has two elements.

1. The first is the possession of one of the above items (which by themselves are not illegal to possess.)
2. The second element is that you also have previously been convicted of a felony or serious offense.  In order to meet the first element, the state must prove the gun was operable and capable of firing.  This was established in the case People v Longshore, 86 NY2d 851, 852 [1995].

• For example, if Bob has previously been convicted of the criminal use of a firearm (a second-degree felony) and he possesses a fully functional shotgun within the state of New York, he can be charged with the possession of an illegal firearm.  However, if that shotgun is a prop gun which could not be made to fire, he cannot be charged with the possession of an illegal firearm.

Charged Without Possession of a Firearm

New York Penal Code Section 265.01 also covers non-firearm related weapon offenses.  Two similar items which may lead to a charge under 265.01 include possessing ammunition which detonates on impact and so-called armor piercing bullets.  Possession of these items does not also have to include the possession of a firearm.

This is very important to know, as the possession of just these illegal types of ammunition without an operating firearm could have the same consequences as possessing an actual illegal firearm. More than likely, possession of these illegal items will be added as additional charges along with the illegal possession of a firearm.

One of the important elements on the illegal possession of these types of ammunition is that the state must also prove that you had the intent to use them against another person.  It is important to note that these violations require as an element of the charge that you knowingly are in possession of such illegal types of ammunition. See People v. Ford, 66 NY2d 428, 440 (1985)

• For example, if Bob does not have an illegal firearm within his possession but has a box of ammunition, which detonates upon impact, he may be charged with a violation of 265.01.  But, if Bob possesses a box of ammunition that is armor piercing but does not intend to use it against another person, he cannot be charged with the offense.

Offenses Related to the Criminal Possession of a Firearm in New York

Charges of the Criminal Possession of a Firearm in New York may be brought in addition to, or in place of, charges for certain other related offenses, including:

Criminal use of a firearm in the first degree.  

This violation requires that you have committed a separate class B felony while at the same time has in their possession an illegal firearm or uses an object that appears to be an illegal firearm while committing the other felony. This law is found under New York Penal Code Section 265.09.  Almost always, this charge is accompanied by one or more serious charges.

• For example, consider if Bob is attempting to influence a court case and commits the offense of tampering with a witness (which is a Class B felony in New York.) While intimidating the witness, Bob brandishes a BB gun, to make his point clear to the witness.  Bob has now not only committed the underlying offense of tampering with the witness, but he has now also committed the offense of criminal use of a firearm in the first degree.

As you can see, even though Bob did not actually have an illegal firearm in his possession, he can still be charged with the criminal use of a firearm, as he used an object which appeared to be a firearm while committing another crime.

Criminal use of a firearm in the second degree.

Similarly, New York has a separate violation for the criminal use of a firearm in the second degree.   The difference between this offense and the criminal use of a firearm in the first degree is the type of underlying offense committed with the illegal firearm.

This offense requires that you have committed a separate class C felony while at the same time has in their possession an illegal firearm or uses an object that appears to be an illegal firearm while committing the other felony. This offense is defined under New York Penal Code Section 265.08.

• For example, if Bob commits the Class C felony of robbery in the second degree and at the same time, he is in possession of an illegal firearm, Bob has now also committed the offense of criminal use of a firearm in the second degree. These types of offenses make it very easy for the state to make multiple charges against a person for a single event.  As you can see, multiple offenses can be quickly stacked against a person for a single event, which creates an advantage for prosecutors in cases against those charged with multiple offenses.

Safe storage of rifles, shotguns, and firearms

Another related offense to the possession of an illegal firearm is the offense of not properly storing a firearm.  This offense is defined in New York Penal Code Section 265.45.

The law requires that if you live with someone who is banned from possessing a firearm (such as a convicted felon, person deemed ineligible by the state to possess a firearm, or a minor), you must safely store your firearm so it cannot be accessed by that person.  In order to comply with the law, your firearm must be in a locked safe or have a functioning gun lock installed on the weapon.

This law is different than a lot of other offenses as it actually looks at the status of a person you live with, not just your history and eligibility as a gun owner.

• For example, if Bob legally owns a shotgun he uses for hunting and keeps the gun on display in his home without a lock, he must ensure that anyone he lives with is not a person banned from possessing that shotgun. Otherwise, Bob himself can be charged with the offense.  If Bob gets a new roommate and unknown to Bob, that roommate is a convicted felon. Bob has now committed the offense.  Understanding this law is incredibly important for gun ownership in the state of New York, as people may commit this offense without even knowing it.

Notable cases involving the criminal possession of a firearm in New York 

Currently, gun rights activists are fighting expanded gun restriction laws across the nation.  One of the most important cases involves New York City’s ban on the transportation of legal firearms outside of the home, except to take the firearm to a licensed firing range within the city. This law was challenged by proponents of gun rights in the state.

• The case, New York State Rifle & Pistol Association Inc. v.s City of New York, New York (https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-city-of-new-york-new-york/), is currently pending a hearing in the Supreme Court of the United States.  The main issue with whether the restriction on the transportation of legal firearms violates the second amendment of the U.S. Constitution, which famously grants citizens of the United States the “right to bear arms.”

The question, which still remains to be answered, is whether the government is allowed to put such strong restrictions on the possession of a firearm and whether public safety should be trumped by the individual rights to possess a firearm.

• Similarly, one of the more important recent gun right cases is from 2012, in the case of Kachalsky v. Cacace (District – 10 Civ 05413, 2nd Circuit – 11-3642).  This case highlights the importance of the exception to the criminal possession of a firearm in the state of New York, which allows persons to be licensed to possess a firearm, which is otherwise illegal to possess by non-licensed persons.

However, the state has strict rules on who may be issued such a license, under New York Penal Code 400.00(15).  This case attempted to challenge the strict requirements of obtaining such a license, most notably that New York requires a person to show a cause for the need of the license for their protection more than the general public would require.

Ultimately, the court found that New York’s restrictive licensing laws are constitutional and currently continue to today. It is important to note that because of the difficulty in obtaining a license to possess a firearm and the fact that New York does not recognize outside state’s gun licensing, residents outside the state of New York should always make sure they are in compliance with New York’s laws before ever bringing a firearm into the state.

What agencies detect, investigate, and prosecute these offenses?

As with most criminal offenses in the state of New York, all police forces are tasked with enforcing these laws.  Local town and city police, along with county officers and state police are the agencies most likely to come across situations involving the criminal possession of a firearm in New York.  As discussed above, much illegal possession of a firearm offense is connected with the commission of other crimes.

This means typically that these charges accompany the investigation and prosecution of other offenses and are often used to strengthen cases against those accused of those crimes.

• For example, the police may investigate a robbery of a store, where no police officer actually witnesses the crime.  However, if during their investigation, witnesses identify a person as committing the crime, the police may find that person while also possessing a firearm.  If the prosecutor has trouble with the robbery charge, the illegal possession of a firearm may be a much easier charge, as it is a strict liability offense to prove to a jury.

Should you be investigated for the criminal possession of a firearm in New York?

It is important to understand your rights and the process of the charges.  You are entitled to consult with an attorney even before being charged with a crime, which is something highly recommended to ensure that you do not incriminate yourself regarding any potential offenses.

Once charged, you have the right to a jury trial, and as with all criminal offenses, the prosecutor must prove all offenses against you beyond a reasonable doubt.

Penalties for violating the criminal possession of a firearm in New York 

Due to New York’s various firearm 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 265.01, the criminal possession of a firearm, you are likely to face the charges as a class E felony.  A class E felony includes one to four years in prison and a fine of up to $5,000. (The maximum penalties for a misdemeanor are one year in jail and a fine of $1,000.) Obviously, the penalties can be enhanced based on your own circumstances and history.

For example, the following factors may be used to elevate the charges to something more significant.

• Your criminal history and background.  If you have a prior history of offenses, particularly violent offenses or prior weapon possession convictions, you are much more likely to face the higher end of the potential sentencing range or even face a higher level felony for your status.
• Use of the weapon during a crime.  If you’re possessed an illegal firearm while committing another crime, you 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 firearm, 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.

What are the serious consequences if proven guilty? 

As discussed above, New York has very strict criminal possession of firearm laws, which may have serious consequences and have a great effect on your freedom, life, reputation, and status in the community.  A conviction for any type of felony has the potential for prison time and steep fines along with having to carry the status of a convicted felon.

What makes these types of charges most troubling is the fact that they are often a strict liability offense, meaning you do not have even to know you are breaking the law to be in violation.  This is an intentional framework as it does not require many elements for prosecutors to prove in order to charge individuals with offenses relating to the possession of firearms.

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.

Call us for help. 

If you are charged with the criminal possession of a firearm in New York and have questions about your case, do not hesitate to contact us. 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.