Gun Possession Attorneys in New York, NY
As gun possession attorneys, we can assist you in getting the best possible outcome on gun charges in New York. New York has one of the strictest gun possession laws in the US. Depending on the unique circumstances of your case, the charges may be dismissed by the prosecuting attorney, reduced to a lesser offense, reduced in number of counts, or even receive an Adjournment in Contemplation of Dismissal (ACD) which is similar to a dismissal without any criminal record. Unfortunately, it is also possible to do a full sentence, depending on the circumstances and prior criminal history.
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.
When a person possesses a firearm without a permit, the common charge is criminal possession in the fourth degree which is a Class A misdemeanor. However, charges can be more severe when the possessor is not a first-time offender or when the possession is made in the commission of a felony. An experienced gun possession attorney can evaluate the unique circumstances of your case to ensure that you have the best possible defense against the gun charges.
Below is a summary of the gun charges in New York, the type of offense, and the sentence. In all of the offenses below, a definite sentence of imprisonment of one year or less may be imposed by the New York court in its discretion for class D and E felonies. The minimum sentence for felonies could be any time between one year to 1/3 of the maximum term.
|
Section |
Offense |
Sentence |
|
265.01: Criminal possession of a weapon in the fourth degree |
Class A misdemeanor |
Imprisonment <364 days |
|
265.01-A: Criminal possession of a weapon on school grounds |
Class E felony |
1-4 years |
|
265.01-B: Criminal possession of a firearm |
Class E felony |
1-4 years |
|
265.01-C: Criminal Possession of a rapid-fire modification device |
Class A misdemeanor |
Imprisonment <364 days |
|
265.01-D: Criminal possession of a weapon in a restricted location |
Class E felony |
1-4 years |
|
265.01-E: Criminal possession of a firearm, rifle or shotgun in a sensitive location |
Class E felony |
1-4 years |
|
265.02: Criminal possession of a weapon in the third degree |
Class D felony |
1-7 years |
|
265.03: Criminal possession of a weapon in the second degree |
Class C felony |
1-15 years |
|
265.04: Criminal possession of a weapon in the first degree |
Class B felony |
1-25 years |
|
265.05: Unlawful possession of weapons by persons under 16 |
Juvenile Delinquent |
|
|
265.06: Unlawful possession of a weapon upon school grounds |
Violation |
Imprisonment <15 days |
|
265.08: Criminal use of a firearm in the second degree |
Class C felony |
|
|
265.09: Criminal use of a firearm in the first degree |
Class B felony |
Additional 5 years to the Class B violent felony conviction |
|
265.10: Manufacture, transport, disposition and defacement of weapons and dangerous instruments and appliances |
Class B misdemeanor – first offense |
Imprisonment <3 months |
|
265.11: Criminal sale of a firearm in the third degree |
Class D felony |
1-7 years |
|
265.12: Criminal sale of a firearm in the second degree |
Class C felony |
1-15 years |
|
265.13: Criminal sale of a firearm in the first degree |
Class B felony |
1-25 years |
|
265.14: Criminal sale of a firearm with the aid of a minor |
Class C felony |
1-15 years |
|
265.16: Criminal sale of a firearm to a minor |
Class C felony |
1-15 years |
|
265.17: Criminal purchase or disposal of a weapon |
Class D felony |
1-7 years |
|
265.19: Aggravated criminal possession of a weapon |
Class C felony |
1-15 years |
|
265.35: Prohibited use of weapons |
Class A misdemeanor / Class E felony (depending on the circumstances) |
Class A misdemeanor: Imprisonment <364 days |
|
265.37: Unlawful possession of certain ammunition feeding devices |
First offense: Violation or Class B misdemeanor (depending on rounds of ammunition) |
Violation: Imprisonment <15 days Class B misdemeanor: Imprisonment <3 months |
|
265.38: Unlawful sale of a non-microstamping-enabled firearm |
First violation: Fine and/or suspension or revocation of dealer's license |
|
|
265.50: Criminal manufacture, sale, or transport of an undetectable firearm, rifle or shotgun |
Class D felony |
1-7 years |
|
265.55: Criminal possession of an undetectable firearm, rifle or shotgun |
Class E felony |
1-4 years |
|
265.60: Criminal sale of a ghost gun in the second degree |
Class E felony |
1-4 years |
|
265.61: Criminal sale of a ghost gun in the first degree |
Class D felony |
1-7 years |
|
265.63: Criminal sale of a frame or receiver in the second degree |
Class E felony |
1-4 years |
|
265.64: Criminal sale of a frame or receiver in the first degree |
Class D felony |
1-7 years |
|
265.65: Criminal purchase of a semiautomatic rifle |
First offense: Class A misdemeanor |
Imprisonment <364 days |
|
265.66: Criminal sale of a semiautomatic rifle |
Class E felony |
1-4 years |
Possible Defenses in a Gun Charge for Possession in New York
Your gun possession attorney must craft 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 possession charge you are facing and the unique circumstances of your case.
The most common defenses in gun possession charges are invalid search and seizure, defective search warrant, lack of knowledge, failure to Mirandize, unlawful arrest, and improper chain of custody.
Invalid Search and Seizure
Generally, a search and seizure must be done with a search warrant. If there is no search warrant, one can already argue that the search was done unlawfully. In exceptional circumstances, a search and seizure can be done without a search warrant. However, the law enforcement officer must have probable cause to effect the warrantless search and seizure. Probable cause is more than a mere suspicion but less than absolute certainty that the person being searched has committed a crime or the place being searched has evidence of a crime. When a search and seizure is done without probable cause, all objects obtained or confiscated as a result of the unlawful search and seizure is inadmissible as evidence. Your gun possession attorney can provide you with more details about the exceptional circumstances when searches and seizures can be made legally without a warrant.
Defective Search Warrant
As a general rule, a search and seizure made with a warrant is legal. However, your gun possession attorney can question the validity of the search warrant when there are inaccuracies or insufficient basis in the search warrant application.
Lack of Knowledge
A person may question the validity of the charge of illegal gun possession when the firearm is found in a location not immediately accessible to the person or when there are multiple people in a location where the firearm was found. For example, if the firearm was found in a car where there are many people in it, these people can claim that they had no knowledge that a firearm was in the car, especially when they do not own the car. In the same way, when the firearm is found in a backpack in a room where there are multiple people inside, the people can claim they had no knowledge of the existence of the firearm in the backpack. Ultimately, it becomes a question of who had actual or constructive possession of the firearm.
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.
Failure to Mirandize
When a person is arrested for the commission of a crime and brought in for custodial investigation, law enforcement officers must inform the arrested person of his Miranda rights. Failure to Mirandize will result to the inadmissibility of any statement, confession or admission made during custodial investigation.
Unlawful Arrest
Generally speaking, an arrest should always be made with an arrest warrant. If law enforcement officials are effecting a warrantless arrest, there must be probable cause to do so. Without probable cause, any object obtained as a result of the unlawful warrantless arrest is inadmissible as evidence. This may include the firearm obtained from the person of the arrested person. Without the firearm, there can be no gun possession charge.
Broken Chain of Custody
Chain of custody requires that the firearm confiscated is the same firearm presented in court. It ensures that the evidence is not tampered with or contaminated. For this reason, proper packaging and labeling is important when the firearm is received, and proper documentation should be made for every transfer of the firearm from one person to another. This includes transfers between law enforcement officials, evidence custodians, forensic analysts, and all other persons who handled the firearm in the chain of custody. If the chain of custody is broken, the gun possession attorney can challenge the authenticity of the firearm being presented in court.
Above are just some of the defenses your gun possession attorney can use, depending on the unique circumstances of your case. When your attorney knows the strengths and weaknesses of the prosecution's evidence, he can highlight the weaknesses when bargaining with the prosecuting attorney.
Taking Advantage of a Plea Bargain
When evidence is very weak, the prosecuting attorney can dismiss the charge, knowing that it is a losing case when it reaches trial and it will be a waste of the prosecuting attorney's time and resources.
When evidence is not strong, the prosecuting attorney may decide to plea bargain by reducing the charge or reducing the number of counts, especially when the charge is not a serious offense and the accused is a first-time offender.
It is not unheard of to plea bargain for Adjournment in Contemplation of Dismissal or a voluntary plea for Disorderly Conduct (which is a violation) for charges of criminal possession of a firearm. A voluntary plea of disorderly conduct allows a person to answer no, in case there is a question of whether such person has a criminal record. In the same way, an adjournment in contemplation of dismissal is a dismissal of the charge if the person charged stays out of trouble in the next six (6) months.
In cases of possession of unregistered firearms with out-of-state gun permits, a gun possession attorney can usually bargain for a voluntary plea of a less serious charge such as misdemeanor or disorderly conduct. 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 dealing with a gun possession charge in New York is obtaining the assistance of a gun possession attorney who can represent your interests with the district attorney's office. A gun possession attorney can analyze the unique circumstances of your case and prepare a successful defense that may lead to a non-criminal disposition of the case. Should you need legal representation, we, at the Law Offices of Albert Goodwin, are here for you. We are located in New York, NY. You can call us at 212-233-1233 or send us an email at [email protected].