Prohibited Use of a Weapon in New York
Any use of a weapon or firearm in a way not legally permitted is prohibited use of a weapon. The laws that address prohibited uses of weapons may seem straightforward, but there are some behaviors that it criminalizes that may not be so obvious.
Examples
For example, some have criminalized the use of an air gun in a public place or an area where another person could get hurt. Here are some ways that a person may violate the prohibited use of a weapon law.
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- A friend, who is very drunk, thinks it would be funny to pop some warning shots over his buddy’s head.
- A person decides to practice using throwing stars at a nearby public park.
- A girlfriend thinks it would be hilarious to scare her boyfriend by jumping out of the bushes and pointing an unloaded gun at him.
- A person who is soured by a bad business deal with his partner decides to take revenge by shooting at his partner’s airplane.
- A hunter crosses over into city limits while hunting.
There are many ways that an individual may be using a weapon that is prohibited.
If you or a loved one has been charged with violations of prohibited use a weapon, please call our offices today. Our team of attorneys is here to help you!
What does New York law say about prohibited use of a weapon?
New York Penal Law § 265.35 governs what acts are prohibited in relation to the use of a weapon.
New York law addresses a variety of behaviors in its prohibited use of a weapon statute. Also, the statute may be amended to criminalize additional activities. As of June 2019, it has not been formally amended to include this additional provision.
Examples of Prohibited Use of a Weapon
If a person commits any of the following, it is considered a violation of this statute.
Hunting Within City Limits
For example, Phil has an authentic bear permit. Phil did not pay attention to where the nearby city limits were located. After wandering around for a couple of hours, he shot a bear while he was in within the city limits. Phil has violated the prohibited use of a weapon statute.
Violations of this provision are considered a Class A misdemeanor. Penalties for a Class A misdemeanor is a maximum fine of 1,000 dollars and up to a year in prison.
Firing Rounds in Public
A person shoots at an airplane, a train, a railway, or another vehicle on a railroad or a public highway. It does not matter if any of these are stationary or moving.
Example
For example, Tom was fired for disorderly conduct from a local train station. After an excessive night of drinking, Tom goes to the train station and shoots several shots at some parked railroad cars. Tom has violated the prohibited use of a train station statute.
Penalties
Violations of this provision can be Class E or Class D misdemeanors. It is considered a Class D misdemeanor if it puts a person at risk of injury. If a person is not at risk of injury, it will be a Class E misdemeanor.
The penalties for a Class E misdemeanor are a maximum fine of 5,000 dollars and up to 4 years in prison. The penalties for a Class D misdemeanor are a maximum fine of 5,000 dollars and up to 7 years in prison.
Firing in a Public Space
A person shoots or throws a weapon in a public space, near a public school, or any place where someone can be injured, even though no one was injured by the activity.
Example
For example, Dave usually practices shooting targets in a secluded and wooded area with Darryl, who is an authorized instructor. This area is close to a newly built school. However, Darryl is unable to show up for the scheduled target practice, but Dave decides to target shoot anyway. Dave has violated this provision of the statute.
Pointing a Firearm at Another Individual
A person points a firearm at another, without intending to cause harm.
Example
For example, Jenna is the captain of the college varsity volleyball team. Lisa is a part of the freshmen class and made the varsity football team. Jenna decides to haze Lisa by jumping out of a van with an unloaded shotgun and kidnap her. Jenna has violated this provision of the statute.
Shooting a Firearm at Another Individual – Without Intent to Harm
A person shoots a firearm at a person, not intending to cause harm.
Example
For example, Greg runs a food cart in a local park. He keeps a pistol on hand due to the increased criminal activity in the park. One day, after he takes a short restroom break, he notices that his food cart is being stolen. He yells stop and also fires a few warning shots over the thief’s head to get back his food cart. Greg violated this provision of the statute.
Shooting a Firearm at Another Individual – With Intent to Harm
A person points and shoots a firearm at a person, not intending to cause harm, but causes injury to that other person.
Example
For example, Laura is with her sisters in a cabin. While around the campfire and drinking heavily, Laura notices that Trish has a concealed weapon. Laura thinks it would be funny to pull out Trish’s weapon and point it at her. Laura grabs Trish’s weapon, and as she begins to point the weapon, it fires and strikes Trish in the abdomen. Laura has violated this provision of the statute.
These last four provisions are classified as a Class A misdemeanor. Violators could face up to a year in prison and a 1,000 dollar fine.
Defenses
There are a few defenses for allegations of violating any of these provisions.
- The provisions that do not deal with hunting, state that this activity must be done willfully. This indicates that the person must have intended the action. In the example of Laura and Trish, if Laura had noticed that Trish’s firearm was on the table and simply wanted to relocate it, and while picking it up it fired and struck Trish in the abdomen, it would not be a violation of this statute.
Laura did not intend to point the weapon at her sister and certainly did not have malice.
- Another defense for one of the provisions is that it needs to occur in a public place. If an individual can attest that the activity was done in a private place, they may avoid charges from this statute.
Also, the statute specifically states that if you are using the firearm in self-defense or in an official capacity, it will not be considered a violation. There are also other defenses that could be used in various circumstances. If you have any questions about defenses or the law, please call one of our local offices today.
Violations of this statute, depending on the circumstances, could result in penalties of 5,000 dollars and up to 7 years in prison.
What are related crimes?
In New York, there are several other crimes that could accompany charges of prohibited use of a weapon. Some of these crimes are:
- Criminal possession of a weapon
- Criminal sale of a weapon
- Criminal possession of a firearm
- Criminal use of a firearm
- Aggravated criminal possession of a weapon
- Criminal purchase or disposal of a weapon
These are not the only New York laws that could accompany a charge of prohibited use of a weapon. These are just a few that may accompany a charge. Depending on the circumstances of the crime, it may also violate a few federal laws. For example, a charge of prohibited use of a weapon may include:
- Interstate transportation of firearms
- Use of restricted ammunition
- Unlawful acts (with a firearm)
- Possession of firearms and dangerous weapons in federal facilities
Also, federal law stipulates that federal law will not supersede state law if the two can coexist without overriding the other. This means that a charge of federal law will not supersede a charge of state law violations, and vice versa. In essence, depending on the circumstances of the activity, a person could be facing state and federal charges for their activities.
A person who is alleged to have violated the prohibited use of a weapon statute may face charges for violating other laws as well. Depending on the circumstances, an individual could be charged with local and federal law violations.
What have the courts had to say about the prohibited use of a weapon?
The courts have looked at a variety of issues with the prohibited use of a weapon statute. Some have looked at definitions of certain terms in the law, while others have looked at how the law relates to other similar laws.
Related Cases
Here are a few court cases where the courts have determined how the prohibited use of a weapon statute applies in these various situations.
- In People v. Lobban, a New York appeals court determined that being acquitted of a charge of prohibited use of a weapon does not preclude other charges for the same activity. The defendant, Lorenzo Labban, fired shots at a vehicle filled with passengers.
He was charged with prohibited use of a weapon, criminal possession of a weapon, and reckless endangerment. He was acquitted of the prohibited use of a weapon charge but convicted on the other charges.
Labban appealed the convictions stating that his convictions were “repugnant” since an acquittal for the prohibited use of a weapon charge was an essential element to the other charges. The court disagreed.
The court stated that the jury could infer from the facts that he may not have intentionally fired his weapon at the car, but did shoot in the vicinity of the vehicle, which endangered the passengers which would result in acquittal of the prohibited use of a weapon charge and conviction for the reckless endangerment charge.
The court affirmed Labban’s convictions.
To read the full court opinion, please click here. Or copy and paste the link below.
https://www.leagle.com/decision/innyco20090213359
- In People v. Burden, a New York appeals court determined that an acquittal for prohibited use of a weapon charge does not sufficiently challenge the weight of the evidence for criminal possession of a weapon charge.
The defendant, Jason Burden had become embroiled in a dispute with another driver. The other driver had left, but Burden fired a shot into the other driver’s bumper. He was charged with prohibited use of a weapon and criminal possession of a weapon.
He was acquitted for the prohibited use of a weapon charge but convicted for the criminal possession of a weapon charge. Burden appealed his conviction stating that his conviction was against the weight of the evidence since the jury acquitted the prohibited use of a weapon charge. The court disagreed.
The court stated that the jury could reasonably find all the elements of a charge of criminal possession of a weapon and still find that the defendant did not willfully act which is required for the prohibited use of a weapon charge.
The court affirmed the Burden’s conviction.
To read the court opinion in full, please click here. Or copy and paste the link below.
https://www.leagle.com/decision/innyco20130711230
- In People v. Wicker, a town court determined that a person who is on his own private property, even though it is open to public view and some individuals from the public, it is not considered a public place.
The defendant, Paul V. Wicker, shot a neighbor’s dog on his own property during a dog fight. Wicker killed the dog with one shot. He was charged with prohibited use of a weapon and animal cruelty. Wicker contended that he was not in a public place that is required for the prohibited use of a weapon. The court agreed.
The court stated that Wicker was on his own property and justifiably used lethal force in an emergent situation. A man has a right to defend himself, others, and his property while on his own land. Due to the vicious attack from the neighbor’s dog on his own dog, it was a justifiable use of lethal force.
Wicker was acquitted of all charges.
To read the court opinion in full, please click here. Or copy and paste the link below.
Who investigates violations of the prohibited use of a weapon statute?
The New York Police Department (NYPD) is the main agency that will investigate allegations of prohibited uses of weapons.
In certain situations, the Organized Crime Task Force (OCTF) may also be involved in the investigations if the activity implicates violations of federal law, the Federal Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco, and Firearms (ATF).
I have been charged with prohibited use of a weapon, what should I do?
Call us! If you have been charged with prohibited use of a weapon, you are likely being charged or will be charged with multiple offenses. When an individual is charged with criminal offenses, it can become very difficult to keep up with other obligations.
Allegations of criminal behavior exact a heavy toll on personal and professional relationships, familial and job responsibilities, and may impact careers and reputations. They also can cause an individual to enter a financial crisis.
This is why it is so important to have a legal team who understands what you are going through and knows what is on the line. Our team of attorneys has represented individuals just like you. We represent you and your best interests. They are skilled, experienced, and professional. They seek to provide the best possible outcomes for you in the current circumstances.
Please call us for a free legal consultation today!
Related press releases
- New York police operation takes down gun traffickers
Charge: Firearm trafficking
Allegation: Three individuals smuggled and sold weapons from Pennsylvania to buyers in New York.
In 2019, three individuals were indicted and charged with a slew of gun trafficking charges for their actions over the course of a few months.
According to the AG press release, Tadarrell Jones, Shyrein Joseph, and Reinaldo Rodriguez were all charged with over 40 counts of charges relating to their gun trafficking schemes. Jones and Joseph sold weapons to an undercover officer on multiple occasions and often brought their underage children to illegal transactions.
These individuals were eventually arrested after an investigation by the NYPD and OCTF.
To read the press release in full, please click here. Or copy and paste the following.
- Gun trafficker sentenced to 25 years in prison
Charge: Gun trafficking
Allegation: Gun trafficker brought in large amounts of illegal weapons into New York
In 2017, a major gun trafficker received a rare sentence of 25 years in prison for his role in a gun trafficking scheme.
According to the AG press release, Quincy Adams was the ringleader of a gun trafficking operation that brought in a very large volume of illegal weapons. These weapons were often smuggled into the state via Chinatown buses. His actions were discovered by a joint investigation called “Operation: Midnight Run.” The NYPD seized dozens of guns and arrested Adams. He was later charged and convicted.
To read the press release in full, please click here. Or copy and paste the link below. https://ag.ny.gov/press-release/ag-schneiderman-announces-trial-conviction-and-sentencing-brooklyn-based-gun
- Uber driver pleads guilty to gun trafficking scheme
Charge: Gun trafficking
Allegation: A man used Greyhound buses to transport large amounts of firearms into New York
In 2017, a former Uber driver pled guilty for his role in an interstate gun trafficking scheme.
According to the AG press release, Marlon Manswell ran a gun trafficking ring for several years. Most weapons were smuggled illegally into New York on Greyhound buses. After a joint investigation, Manswell was eventually discovered and arrested for his participation in the illicit activity. The operation seized over 50 illegal weapons. Manswell was sentenced to 5 years in prison and two years of supervised release after that.
To read the press release in full, please click here. Or copy and paste the link below.
- New York’s “Operation: Wrecking Ball” is a success
Charge: Gun and drug trafficking
Allegation: A group of dealers was involved in smuggling various narcotics and illegal firearms into upstate New York.
In 2017, 19 individuals were indicted for their participation in a gun and drug trafficking scheme that brought in illegal goods to the state of New York.
According to the AG press release, hundreds of hours of investigations were made into various drug and trafficking schemes. After compiling all of the data, officers from several divisions across the state arrested 19 individuals and seized a large amount of cocaine and firearms. Over 265 traffickers have been arrested at this time due to a surge of law enforcement action against these types of smugglers.
To read the press release in full, please click here. Or copy and paste the link below.
- Upstate New York ringleader pleads guilty
Charge: Gun and drug trafficking
Allegation: Ringleader orchestrated a scheme to sell cocaine and illegal firearms on the streets of upstate New York
In 2017, the ringleader of a cocaine and gun distribution in upstate New York pled guilty to criminal sale of a controlled substance in the second degree.
According to the AG press release, Cedric James was the ringleader of selling a cocaine derivative known as “the Miley Cyrus.” This activity had been going on for years until a joint investigation was able to break down the gun and drug trafficking ring. James was arrested with 18 other individuals for 225 criminal violations.
To read the press release in full, please click here. Or copy and paste the link below.