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Criminal Firearm Possession: New York Penal Code § 265.01-b

Criminal firearm possession is a Class E felony in the State of New York. Under Penal Code 265.01-b, the charge of criminal firearm possession assumes that there are no factors that would impune a more serious felony other than the criminal firearm possession. According to Penal Code 265.00(3), a firearm is:

  1. A pistol or revolver,
  2. An assault weapon,
  3. Any weapon made from a shotgun or rifle,
  4. A shotgun with one or more barrels that are shorter than eighteen inches,
  5. A rifle with one or more barrels that are shorter than sixteen inches.

The exception to the definition is an antique firearm. Antique firearms do not fall under the purview of this penal code.

Hypothetical Case

Suppose a man was driving his red convertible down a deserted street at 3:00 am. A police officer observed the brightly painted car and decided that he should pull the car over because he believed that the car should not be in the area at that time of the morning. The driver stopped the vehicle and stepped out of the car on the officer’s instructions with his hands in the air. The officer performed a pat down search of the man and found a firearm in the man’s jacket pocket. The officer arrested the man and charged him with criminal firearm possession.

Possible Defenses

Lack of probable cause. In the State of New York, probable cause must be present in order to perform a search of an individual’s person, residence, home, car, office, or other property. Probable cause may be inferred when law enforcement officers have reason to believe that a crime was committed. If probable cause cannot be demonstrated, materials and property found during the unsubstantiated search, such as the weapon in the above case, may not be admitted as evidence, removing a key element in support of the prosecuting attorney’s case.

Other lines of defense. Veteran defense attorneys who have led many defensive cases designed to protect the interests of clients charged with various types of weapons possession may have other tactics available to them that could force a reduction or dismissal of charges. Further, any of the evidence in the case presented by the prosecuting attorney may be questioned in an attempt to weaken the prosecuting attorney’s position.

Possible Sentence

Imprisonment. Criminal firearm possession is a Class E felony. If found guilty, the maximum possible sentence is four years in jail. Depending on the details of the felony and if the convicted person had no prior criminal history, the judge may decide to levy a more lenient prison sentence.

Probation. The presiding judge has the option of adding a probation term of five years. The convicted person must report regularly to their probation officer, disassociate themselves from known criminals, and refrain from owning firearms. If the convicted individual does not follow the probationary instructions of the court, the probation may be converted into time behind bars, instead.

Monetary Fine. The presiding judge has the option of adding a monetary fine as part of the sentence.

NY Penal Code § 265.01-b: Criminal firearm possession

To recap, a person is guilty of criminal firearm possession when:

  1. That person possesses any firearm unlawfully;
  2. That person lawfully possessed a firearm prior to the addition subdivision 16-a of section 400.00 of this section of the law in the year 2013 which required registration of such firearms, yet that person knowingly failed to register their firearm.
Lawyer to Defend Against the Charge of Criminal Firearm Possession

To ardently defend against a charge of criminal firearm possession, it is critical to engage a reputable and experienced defense law firm with a history of successfully protecting clients’ interests and reputations. An effective defense attorney will help prevent your spending undeserving time in jail or becoming negatively impacted because of a permanent criminal record.

The Barry C. Weiss P.C. law firm effectively defends persons charged with criminal firearm possession, as well as other weapons and firearm 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 is comprised of a team of highly skilled and experienced attorneys who are committed to providing the best defense possible for 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. Criminal weapon possession on school grounds: § 265.01-a
  2. Third degree criminal weapon possession: § 265.02
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