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Aggravated Criminal Weapon Possession: New York Penal Code § 265.19

The State of New York has stringent laws about who may purchase and own firearms and different types of weapons such as explosive substances, switchblades, and razors. Owning such items and having an unlawful intent to use them to harm another person is a crime. New York Penal Code 265.19 applies to those individuals who have committed a second degree criminal weapon possession offense in conjunction with a felony. A second degree criminal possession is defined in New York Penal Code 265.03 and is the possession of a disguised gun, loaded firearm or a machine gun with the intention to use it unlawfully or possessing five or more firearms.

Hypothetical Case

Suppose the police received a tip that a large amount of cocaine was being stored in a warehouse in the industrial section of town. Police officers staked out the warehouse and observed a man carrying a small package under his arm exit through the side door of the warehouse and walk onto the sidewalk. A woman was waiting next to a nearby streetlight and greeted the man. The man handed the woman his package, and she handed the man a thick envelope that he inserted into his jacket pocket. Suspecting that a cocaine transaction had taken place, the police officers approached and arrested the man and the woman on charges of second degree felony criminal sale of a controlled substance, suspecting that the small package contained at least half an ounce of cocaine. Upon searching the man, the officers found a loaded handgun, and the man was also charged with aggravated criminal weapon possession.

Possible Defenses

Lack of probable cause. In New York state, probable cause must be present to conduct a legal search of an individual’s person, residence, home, car, office, or other property. Probable cause may be invoked when law enforcement authorities have reason to believe that a crime was committed. If probable cause was not evident, any materials and property found during the search is inadmissible as evidence. If police officers obtained the gun without probable cause, for example, they will not be able to use the gun as evidence.

Two crimes were not committed. For a person to be convicted of aggravated criminal possession of a weapon, the prosecuting attorney must prove that two crimes were committed. In the above scenario, the prosecuting attorney must produce evidence that the felony sale of a controlled substance was committed and was done while an illegal weapon was in the accused person’s possession. All of the elements of the law must be met: a) that there was a controlled substance involved, b) that it was of the required amount, c) that a sale was transacted, d) that the weapon was loaded at the time the controlled substance was exchanged, and e) that the illegal weapon was in the accused person’s possession.

Other lines of defense. Experienced defense lawyers who have worked on numerous weapons defense cases have extensive experience with various situations and types of evidence, all of which may tip the case in favor of the defendant.

Possible Sentence

Imprisonment. Aggravated criminal weapon possession is a Class C felony which imposes up to fifteen years behind bars. The crime is considered a violent felony offense. Three and a half years is the minimum prison sentence even if the conviction is an individual’s first one, and if the convicted person has a prior felony on record, then the time spent in incarceration will be more than three and a half years, up to fifteen years.

Probationary Period. In addition to imprisonment, the presiding judge may add a term of probation, requiring the convicted person to report regularly to a parole officer and abide by the rules of probation.

Monetary Fine. In addition to imprisonment, the law mandates a fine that may be up to $15,000. The convicted person’s history, background and criminal record are taken into consideration in deciding on the appropriate sentence.

NY Penal Code § 265.19: Aggravated Criminal Weapon Possession

In summary, a person will be found guilty of aggravated criminal weapon possession if that person:

  1. Has violated Code § 265.03 or second degree criminal weapon possession; in conjunction with
  2. The commission of any violent felony as described in Code § 70.02 or a controlled substance trafficking offense as described in Code § 10.00.
Lawyer to Defend Against the Charge of Aggravated Criminal Weapon Possession

To effectively defend against a charge of aggravated criminal weapon possession, it is important that you seek legal counsel from an experienced and reputable defense law firm that has well-qualified staff to successfully protect clients’ rights and interests.

The Barry C. Weiss P.C. law firm has successfully defended persons charged with aggravated criminal weapon possession, as well as other weapons and firearm violations, misdemeanors and felony crimes in the State of New York, including criminal possession of a firearm, criminal possession of a weapon, and criminal sale of a firearm. The Elliot Adler PC law firm has experienced, skilled and reliable attorneys who commit themselves to providing the best representation in defense of their clients.

We can be reached at (212) 785-1300 or to schedule a no-obligation, free legal consultative meeting to evaluate your case.

Related Offenses

For additional information, refer to the following sections of the New York Penal Code:

  1. Second degree criminal firearm use: § 265.08
  2. Second degree criminal weapon possession: § 265.03
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