How to Beat a Gun Charge in New York, NY

Beating a gun charge in New York requires an in-depth knowledge of firearm possession laws coupled with the expertise of a criminal gun charge New York attorney, especially because New York has one of the strictest gun charges in the country.

State Gun Charges in New York

Gun charges in New York can be classified into possession, use, and sale. The bulk of gun charges in New York, however, are based on possession. Criminal possession of a firearm can be penalized as a class E felony all the way to a class B felony, depending on the unique circumstances of the case.

To beat a gun charge in New York, you can build a strong defense, challenge the evidence, and take advantage of plea bargains. The most effective strategy to be used will depend on the type of gun charge you are facing.

Different Gun Charges for Possession in New York

In New York, a person can be guilty of criminal possession of a firearm under New York Penal Law (NY Pen) § 265.01-b if the person possesses any firearm and fails to register it. Under this provision, the offense is committed when the person has knowledge of such possession of an unregistered firearm.

A firearm is defined as:

New York also punishes criminal possession of a weapon in the third, second, and first degrees as Class D to Class B felonies, depending on the circumstances of the case.

Criminal possession of a weapon in the fourth degree is classified as a Class A misdemeanor, and this involves the possession of a wide range of weapons, such as:

Possible Defenses in a Gun Charge for Possession in New York

Based on the definition of criminal possession, there are possible defenses to beat a gun charge in New York: (1) possession (actual or constructive); and (2) knowledge. Other defenses may include challenging the evidence or taking advantage of a plea bargain.

Possession (Actual or Constructive)

One of the elements of criminal possession of a firearm or weapon is possession. Possession can be construed as either actual or constructive.

Actual possession means the person charged had predominant access to the weapon or firearm. Usually, this occurs when the firearm or weapon is found within the person’s body or near the person’s body (such as in between car seats).

Constructive possession occurs when the firearm or weapon is in a place where the person charged has dominion or control over.

Knowledge

In order to be guilty of criminal possession of a firearm or weapon, one must have knowledge that there was possession of an unregistered firearm. For example, a person may be acquitted if the person had knowledge that the gun was in the car. This defense usually applies when there are a several persons in a car where an unregistered gun is found, and these persons are not the owners of the car. It can also apply when a gun is found in a backpack in the car, and the driver was not the owner of the backpack and had no knowledge of the backpack and gun being inside the car.

Challenging the Evidence

Another way of beating the gun charge is by challenging the evidence obtained by the police. This is usually done by claiming that the gun retrieved by the police is a result of an illegal search, improper conduct of the police, or issues with the search warrant. A criminal defense attorney can claim that there was no probable cause to conduct a traffic stop or search the vehicle. If successful, the gun becomes inadmissible as evidence, which then weakens the prosecution’s charge on criminal possession of a firearm.

Taking Advantage of a Plea Bargain

Taking advantage of a plea bargain is important in every criminal case. Most district attorneys prefer to plea bargain, especially when evidence of guilt is not strong, the charge is not a serious offense, and the person charged was not previously convicted of a felony. A voluntary plea of a less serious charge such as misdemeanor or disorderly conduct may be bargained for, especially in cases of possession of unregistered firearms with out-of-state gun permits. This happens when the person has a registered firearm from his residence state and moves across inter-state lines, usually by means of vehicle transport.

The first and major step in beating a gun charge in New York is obtaining the assistance of an expert criminal defense attorney who can represent your interests with the district attorney’s office. An expert criminal defense attorney can analyze the unique circumstances of your case and prepare a successful defense that may lead to a non-criminal disposition of your case. Should you need assistance, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].