Illegal Ammunition in New York
What is Selling Illegal ammunition?
Selling illegal ammunition refers to an individual or organization that buys, sells, or holds ammunition outside of the requirements provided by law.
What law Defines and Governs Sellers of Ammunition in New York?
Before addressing particular types of ammunition, let’s first take a look at how the Penal Code defines and outlines the operations of “sellers of ammunition” in Section 400.03. As some of the laws we will discuss in this article are rather lengthy and complicated, please note the red-bulleted text summarizing the preceding formal paragraph throughout.
Section 400.03 Sellers of Ammunition
Section 400.03 details the definitions and operations of ammunition sellers. Let’s discuss cogent excerpts of the text of that provision.
- A seller of ammunition as defined in subdivision 24 of section 265.00 of this chapter shall register with the superintendent of state police in a manner provided by the superintendent. Any dealer in firearms that is validly licensed according to section 400.00 of this article shall not be required to complete such registration.
- Subdivision 24 of Section 265.00 defines sellers of ammunition as “any person, firm, partnership, corporation or company who engages in the business of purchasing, selling or keeping ammunition.”
This essentially means that any individual or organization that holds ammunition or engages in transactions involving ammunition qualifies as a seller of ammunition.
Paragraph 1 above tells us that sellers must register with the superintendent of state police unless they are a validly licensed dealer under Section 400.00. Licensing under this provision has many requirements, such as:
- First, only a licensing officer may issue or renew a license, and licenses may only be issued after all of the statements made in the application have been investigated and shown to be true.
- Applicants must be at least 21 years old. The only exception to this age requirement is for applicants who have been honorably discharged from the army, marine corps, air force, coast guard or national guard. Dishonorable discharge from the Armed Forces will disqualify an applicant.
- In addition to the age requirement, applicants must be deemed to be of good moral character, never convicted in any jurisdiction of a felony or other serious offense, and not be subject to an arrest warrant. They also must not be a fugitive from justice.
- Further, applicants may not illegally use or be addicted to any controlled substance, illegally in the country, or the country on a nonimmigrant visa. No applicant who has been a U.S. citizen and renounced that citizenship will meet the application’s requirements.
- In terms of mental health, the law provides for several safeguards. An applicant must provide a statement as to whether they have ever had a mental illness. Those who have ever been involuntarily committed to a mental health facility by officers of various jurisdictions will not pass the application process. Similarly, applicants will be denied if they have ever been civilly confined in a secure treatment facility.
- Further, applicants must not have had a guardian appointed for them due to a determination that they lack the mental capacity to manage their affairs, as a result of a diagnosis of significantly impaired intelligence, mental health, or due to incapacity or illness.
- Any applicant who has had a license revoked previously is subject to suspension or ineligibility under criminal law.
- Note that Westchester County has its unique requirements, including successfully passing a firearms safety class and test. This course and test do not apply to those who obtained a license for a gun before the law’s effective date or were honorably discharged from the Armed Services and can furnish proof of official qualification for the use of firearms during their time in service.
- Given the intense national focus on gun control and gun rights, and the frequently-changing landscape on the subject, and various efforts at making changes to gun laws, be sure to check your local laws for any recent changes. While sometimes controversial, if you are handling firearms or ammunition, it’s critical to know the laws and keep abreast of any changes.
- Any seller of ammunition or dealer in firearms shall keep a record book approved by the superintendent of state police.
- In the record book shall be entered at the time of every transaction involving ammunition the name, date, occupation, age and residence of any person from whom ammunition is received or to whom ammunition is delivered, and the amount, caliber, manufacturer’s name, and serial number, or if none, any other distinguishing number or identification mark on such ammunition.
- Paragraph 2 requires ammunition sellers to keep a record approved by the state police superintendent, which record notes every ammunition transaction, including details identifying the buyer or recipient of the ammunition, and the identifying information of the ammunition sold.
- The record book shall be maintained on the premises mentioned and described in the license. It shall be open at all reasonable hours for inspection by any peace officer, acting according to his or her special duties, or police officer.
- Any record produced according to all not be considered a public record for purposes of article six of the public officer’s law.
- These records must be kept on the seller’s premises, described in the seller’s license, and available for inspection by any peace of police officer. These records and their transmission are not considered public records.
- No later than 30 days after the superintendent of the state police certifies that the statewide license and record database established pursuant to section 400.02 of this article is operational for this section.
- A dealer in firearms licensed according to section 400.00 of this article, a seller of ammunition as defined in subdivision 24 of section 265.00 of this chapter shall not transfer any ammunition to any other person who is not a dealer in firearms. It is as defined in subdivision 9 of such section 265.00 or a seller of ammunition as defined in subdivision 24 of section 265.00 of this chapter, unless:
- 30 days after the state police superintendent certifies that the statewide license and record database is operational, a licensed gun seller or seller of ammunition shall not transfer any ammunition to anyone who is not also a firearms dealer or an ammunition seller, with the following exceptions:
- before the completion of the transfer, the licensee or seller contacts the statewide license and record the database;
- provides the database with information sufficient to identify such seller or dealer, transferee based on information on the transferee’s identification document as defined in paragraph (c) of this subdivision, as well as the amount, caliber, manufacturer’s name, and serial number, if any, of such ammunition;
- if before the completion of the transfer, the seller contacts the statewide database and provides sufficient identifying information of the parties and ammunition;
- the system provides the licensee or seller with a unique identification number, and the database assigns a unique identification number to the seller; and
- the transferor has verified the identity of the transferee by examining a valid state identification document of the transferee issued by the department of motor vehicles or if the transferee is not a resident of the state of New York, a valid identification document issued by the transferee’s state or country of residence containing a photograph of the transferee.
- the seller has verified the identity of the buyer via state-issued identification, or if the buyer is not a New York State resident, the seller has verified their identity via a valid identification document that is issued by the buyer’s state of residence and includes a photograph of the buyer.
- No commercial transfer of ammunition shall take place unless a licensed dealer in firearms or registered seller of ammunition acts as an intermediary between the transferor and the ultimate transferee of the ammunition to contact the statewide license and record database according to this section. Such transfer between the dealer or seller and transferee must occur in person.
- Commercial transfers of ammunition are illegal unless a licensed firearms dealer or registered seller serve as an intermediary between the parties to the intermediary can contact the statewide database. The transaction must also occur in person.
- A seller of ammunition who fails to register according to this section and sells ammunition, for a first offense, shall be guilty of a violation and subject to the fine of one thousand dollars and for a second offense, shall be guilty of a class A misdemeanor.
- An ammunition seller who does not register as required by this section and sells ammunition is guilty of a violation for the first violation and subject to a fine of $1,000. For a second offense, the seller is guilty of a class A misdemeanor.
- A seller of ammunition that fails to keep any record required according to this section, for a first offense shall be guilty of a violation and subject to a fine of five hundred dollars, and for a second offense shall be guilty of a class B misdemeanor, and the registration of such seller shall be revoked.
- An ammunition seller who does not keep any record required by this law is guilty of a violation for the first offense and is subject to a fine of $500. A second offense is a class G misdemeanor, and the seller’s registration will be revoked.
Section 265.36 Unlawful Owneship of a Large Capacity Ammunition Feeding Device
Under New York State law, Article 265 of the Penal Code, Section 265.36 defines unlawful possession of a large capacity ammunition feeding device, and related offenses and classifies this charge as a class A misdemeanor.
Taking a closer look at Section 265.36 details the elements of the defined crime that must be proven in order for prosecutors to secure a conviction. Let’s consider the text of the law, its precise language, and what it means.
- It shall be unlawful for a person to knowingly possess a large capacity ammunition feeding device, manufactured before September 13, nineteen hundred ninety-four, and it’s illegal to knowingly have a large capacity ammunition feeding device that was made before September 13, 1994.
- If such person lawfully possessed such large capacity feeding device before the effective date of the chapter of the laws of two thousand thirteen which added this section, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition.
- If you had such a large capacity feeding device before 2013, it’s illegal to possess one with a capacity or capability of holding more than ten rounds of ammunition.
- An individual who has a reasonable belief that such device is of such a character that it may lawfully be possessed and who surrenders or lawfully disposes of such device within thirty days of being notified by law enforcement or county licensing officials that such possession is unlawful shall not be guilty of this offense.
- If you reasonably believe that your device is a type that is legal to possess and you surrender the device within 30 days of notification from officials that possessing the device is illegal, you will not be found guilty of this charge.
- It shall be a rebuttable presumption that such person knows that such large capacity ammunition feeding device may not be lawfully possessed if he or she has been contacted by law enforcement or county licensing officials and informed that such device might not be lawfully possessed.
- Unlawful possession of a large capacity ammunition feeding device is a class A misdemeanor.
- It will be presumed that you know that such a device is illegal to have if officials have contacted you and informed that having the device is illegal.
Section 265.37 Unlawful Possession of Certain Ammunition Feeding Devices
Section 265.37 defines unlawful possession of certain ammunition feeding devices, which may be classified as a violation, Class A misdemeanor or Class B misdemeanor.
Taking a closer look at Section 265.37 details the elements of the defined crime that must be proven in order for prosecutors to secure a conviction. Let’s consider the text of the law, its precise language, and what it means.
- It shall be unlawful for a person to knowingly possess an ammunition feeding device where such device contains more than seven rounds of ammunition.
- It is illegal to knowingly possess an ammunition feeding device that contains more than seven rounds of ammunition.
- If such device containing more than seven rounds of ammunition is possessed within the home of the possessor, the person so possessing the device shall, for a first offense, be guilty of a violation and subject to a fine of two hundred dollars, and for each subsequent offense, be guilty of a class B misdemeanor and subject to a fine of two hundred dollars and a term of up to three months imprisonment.
- If the device contains more than seven rounds of ammunition and is in the possessor’s home, that person is guilty of a violation and subject to a fine of $200. For each additional offense, the person is guilty of a class B misdemeanor and subject to a find of $200 and a prison term of up to three months.
- If such device containing more than seven rounds of ammunition is possessed in any location other than the home of the possessor, the person so possessing the device shall, for a first offense, be guilty of a class B misdemeanor and subject to a fine of two hundred dollars and a term of up to six months imprisonment, and for each subsequent offense, be guilty of a class A misdemeanor.
- If the device contains more than seven rounds of ammunition and is possessed outside the home, that person is guilty of a Class B misdemeanor and subject to a fine of $200 and the specter of imprisonment for up to six months. For each additional offense, the person is guilty of a class A misdemeanor.
What are some related Laws?
Given the number and complexity of New York State’s gun laws and the many public interest concerns regarding the conditions under which guns can be purchased, it’s useful to take a look at a New York State provision regarding the purchase of guns.
Purchase of rifles and/or shotguns in contiguous states
Section 265.40 lays out the conditions under which guns may be legally purchased in states contiguous to New York State.
- “Contiguous state” shall mean any state having any portion of its border in common with a part of the border of the state of New York;
- All other terms herein shall be given the meaning prescribed in Public Law 90-618 known as the “Gun Control Act of l968” (18 U.S.C. 921).
It shall be lawful for a person or persons residing in this state, to purchase or otherwise obtain a rifle and/or shotgun in a contiguous state, and to receive or transport such rifle and/or shotgun into this state; provided, however, such person is otherwise eligible to possess a rifle and/or shotgun under the laws of this state.
- Contiguous states are those that share a border with New York State.
- All other terms in this section are defined in Public Law 90-618 known as the “Gun Control Act of l968” (18 U.S.C. 921)
- It is legal for someone living in New York State to obtain a gun in a contiguous state and to receive or transport the gun into the state, as long as the person is otherwise eligible to possess a gun under the laws of New York State.
What are the statutory penalties if you are convicted of this crime?
As we’ve seen, these offenses encompass a range of various felony and misdemeanor classes, each of which carries its own potential sentence. New York’s felony classes and sentences spell out these sentences, which range from no time in prison to life sentences. When considering sentencing ranges, keep in mind that certain factors may come into play, including the following:
- prior convictions
- persistent offender status, and;
- youthful offender status
- Another important factor that may affect sentencing is the particular court and judge you may find yourself in. Individual judges tend to have varying philosophies on crime and punishment and rule accordingly, while some respond to certain types of arguments more than others.
This is the kind of specialized, local knowledge that your attorney should be able to offer you. Considerations like this one can change a lawyer’s strategy and improve the chances for your outcome.
An offense is other than a traffic violation, that carries a sentence of a prison term anywhere from 15 days to one year.
Is punishable by a definite sentence set by the court, not to exceed three months in custody. A violation carries a definite sentence not to exceed 15 days in custody.
What are some of the additional consequences of being convicted?
Bear in mind that, regardless of the sentence given by a court, the conviction may cost additional consequences. Consider that professional consequences can include the following:
- loss of licenses
- reputational damage, and;
- financial costs to associated companies.
- While unfortunate, it’s also a reality that many communities, regardless of size, involve a certain amount of gossip.
- Those who you confide in regarding a conviction may be entirely trustworthy, yet let slip the information if for no other reason than concern for you. In addition, felony cases often result in newspaper articles and may be addressed on local news programs, so that even your best efforts to keep your business your own may not prove successful.
- Also unfortunate is that stigma remains in our society regarding those with convictions. A conviction for a class B felony of years ago is likely water under the bridge for the individual, but the community may remember and hold stigma-advancing views. Protecting yourself is the best measure.
- Keep in mind that misdemeanor convictions can carry as serious consequences as felonies in certain circumstances.
- It’s important to avoid a failure of imagination when it comes to reviewing the possible consequences to a conviction. There are many forms having nothing to do with employment that asks whether you have been convicted of a crime.
- Depending on your doctor, grocery store, or even spa, you may be denied service if they have a form that asks the conviction question to access their services.
- The conviction may also make finding a job or housing more difficult, and require a fight in court that may be costly, both personally and financially. Convictions may appear in all manner of routine background checks for things as innocuous as opening a bank account or credit card.
It’s essential to take all possible action to avoid a conviction to protect your future opportunities, as well as your family’s.
What are some defenses to Illegal ammunition in New York?
Please know that there are ways to fight these charges in court. You have a right to an attorney, and there are myriad circumstances and defenses that can mitigate your situation if you find yourself in a challenging situation.
An affirmative defense is one that is specifically laid out by statute, and the burden is on the defendant to prove that the defense is available to them, by a preponderance of the evidence. Defenses that are not affirmative defenses are offered, the prosecution has the burden to prove that the defendant does not have the defense available to them, beyond a reasonable doubt.
Defenses that may be available to charges of illegal sale of ammunition, unlawful possession of a large capacity ammunition feeding, or unlawful possession of specific ammunition feeding devices include justification, meaning that the sale or possession was necessary as an immediate emergency measure to prevent imminent public or private injury, which injury would happen in short order and through no fault of the defendant.
While it may be difficult to imagine a scenario in which a justification defense would come into play in relation to unlawful possession of ammunition, it’s important to consider emergency situations. In a standoff between the police and criminals they are pursuing, and gunfire is exchanged, it’s likely that press will arrive in the scene relatively quickly.
- In this instance, if a reporter finds themselves in serious danger and the only available means of protecting themselves involves use of an unlawful ammunition feeding device left behind by the perpetrators, the reporter is likely to prevail on a justification defense.
Infancy may be another available defense, generally shielding those under 18 years of age from criminal liability for their actions. In addition, duress may be an effective defense. This defense applies if the sale or possession comes to pass due to the defendant being coerced by threat or use of violence which the defendant would not be able to defend themselves against.
The infancy defense may prove a successful one in certain instances. For example, a teenager who finds ammunition in his locker at school that was placed there by pranksters as a “joke” will likely not face any conviction. The pranksters, on the other hand, are in some form of trouble!
Help is Available
Facing any of the charges discussed above requires the assistance of a knowledgeable attorney who can help you navigate the various processes involved in the legal process. It’s crucial to engage an experienced criminal defense lawyer as soon as possible to ensure your rights are protected, and your case receives the best outcome possible.