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Second Degree Criminal Use of a Firearm: New York Penal Code § 265.08

New York Penal Code 265.08 makes it illegal to be in possession of a deadly weapon while committing a felony. To be convicted of second degree criminal use of a firearm, the accused must have:

  1. Possessed a loaded deadly weapon or displayed something that looked like a firearm, and
  2. Was committing a violent felony offense, Class C.
Hypothetical Case

Suppose man broke the sliding glass door and entered a home from the back yard. He took several valuable items, including jewelry and a video gaming system. The police responded to the alarm that was triggered and captured the man who committed the burglary a short time after the burglary. The police officers found a loaded firearm in the man’s jacket pocket as well as the items that the man stole. The man was charged with burglary in the second degree, a Class C violent felony, as well as second degree criminal use of a firearm.

Possible Defenses

Weapon was not deadly. In the State of New York, if the weapon was not loaded as defined in New York Penal Code 10.00(12), the defense attorney may use that fact to advantage. New York Penal Code 10.00(12) defines a “deadly weapon” as:

  1. Metal knuckles
  2. Plastic knuckles
  3. Blackjack
  4. Billy
  5. Dagger
  6. Metal knuckle knife
  7. Pilum ballistic knife
  8. Gravity knife
  9. Switchblade knife
  10. A loaded weapon that can cause serious physical injury or death

If it can be demonstrated that the weapon was not deadly or that it was not a firearm at all, the defense may move to have the charge dismissed.

Other lines of defense. An aggressive attorney may try to undermine the prosecuting attorney’s case by challenging evidence put forth by the prosecuting attorney. Seasoned defense attorneys who have been involved in numerous weapons cases have extensive experience with circumstantial and various types of evidence, as well as other case elements, that may be used to help tip the case in favor of the defendant.

Possible Sentence

Imprisonment. Second degree criminal use of a firearm is a Class C felony which warrants up to fifteen years of imprisonment. Seven years is the minimum prison sentence allowed as a prior conviction will have been assumed with the felony crime that was committed in tandem.

Probationary Period. Once the prison term has been served, the presiding judge may decide to impose a term of supervision after release from jail or a term of probation wherein the convicted person must report regularly to a parole officer and abide by the rules handed down from the court.

NY Penal Code § 265.08: Second degree criminal use of a firearm

To reiterate, a person will be guilty of second degree criminal use of a firearm when that person commits any class C violent felony offense as defined in section 70.02(b) and:

  1. The person shows an object that appears to be a firearm, machine gun, shotgun, rifle, revolver, or a pistol; or
  2. The person has in his or her possession a loaded and deadly weapon that may be used to readily cause serious injury or death.
Attorney to Defend Against the Charge of Second Degree Criminal Use of a Firearm

To aggressively defend against a charge of second degree criminal use of a firearm, it is imperative to get reliable legal advice from a skilled and knowledgeable defense law firm with resources to successfully protect clients’ interests.

The Barry C. Weiss P.C. law firm effectively defends persons charged with second degree criminal use of a firearm, as well as other weapons and firearm violations, misdemeanors and felony crimes in New York state, including criminal possession of a firearm, criminal possession of a weapon, and criminal sale of a firearm. The Elliot Adler PC law firm has highly skilled and experienced lawyers who are committed to providing a strong case to protect and serve the best interests of clients, structuring defenses designed to cause the dismissal or reduction of charges.

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

Related Offense

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

  1. Second degree criminal weapon possession: § 265.
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