The state of New York has some of the most restrictive weapon laws in the country, and New York City has codified even more severe restrictions. If you are facing a criminal weapons charge, or if you just have questions about New York weapons laws, it is essential that you educate yourself about the penalties and punishments for weapons charges in New York.

The statutes themselves are incredibly wide-ranging and cover weapons from simple items like a switchblade or gravity knife, all the way up to firearms like pistols, rifles, shotguns, and assault weapons. Not just that, but there are varying legal definitions of “possession” of a dangerous or potentially deadly weapon that are worth understanding. What’s more, having the “intent to use” a weapon can have a significant impact on how you are charged or sentenced.

Actual & Constructive Possession of Weapons

An important legal concept recognized under New York law is known as actual vs. constructive possession. Actual possession means that the weapon in question, whether a firearm, bladed or blunt object, was found on your person, concealed or otherwise, or adjacent to you within easy reach (such as on a surface in front of you or between car seats).

Constructive possession means that one or more people have control over the weapon. For instance, a handgun located in the trunk of a car, in a glovebox, under your bed, or even behind your house in a utility structure like a barn or shed is considered constructive possession.

The determination of whether a weapon is loaded or not makes a difference in the severity of possession charges. According to New York penal law, you can be charged with having a loaded weapon even if the weapon was technically unloaded but you were still carrying the ammunition needed to load it.

Misdemeanor Weapon Charges In NY

Only the lowest-level weapons possession offense, criminal possession of a weapon in the fourth degree (NY PL 265.01) carries a misdemeanor penalty. Everything above that, including third, second, and first degree possession, and criminal use of a firearm, are all classified as violent felonies in New York.

Possessing a weapon in the fourth degree criminalizes the possession of various non-firearm weapons and dangerous objects. Here is a list of a few of the items that can result in this charge:

• Dart guns
• Stun guns
• Various knives
• Cane swords
• Billy clubs
• Blackjacks
• Bludgeons
• Metal knuckles
• Chukka sticks
• Sandbags
• Some slingshots
• Shurikens (throwing stars)
• Etc.

Fourth Degree Possession is a class A misdemeanor and is punishable by up to one year in jail for first-time offenders. Illegally possessing any type of firearm (PL 265.01-b) or possessing any of the weapons listed by statute on school grounds (PL 265.01-a) are class E felonies and carry much stiffer penalties.

Felony Weapon Charges In NY

Any more serious circumstances involving the possession or use of a weapon in New York are classified as violent felonies and typically carry heavy sentences, including mandatory minimum sentences.

Criminal Possession of a Firearm (PL 265.01-b)

A class E felony punishable by a minimum of 1 year and a maximum of 4 years in prison, along with a fine of up to $5,000, is applied when a person knowingly and illegally possesses an operable firearm. Harsher charges may be applied if the weapon was loaded at the time of the offense or if the accused had provable intent to use it on another person unlawfully.

Criminal Possession of a Weapon, Third Degree (PL 265.02)

A class D felony, this applies to circumstances such as a person’s possession of multiple (three or more) weapons outside of their home or business, whether those weapons have had identifying marks such as serial numbers defaced or removed, high-ammunition-capacity or assault weapons, unloaded or loaded firearms used in a violent or narcotics-related offense, and explosive or incendiary devices.

This charge is also applied if the accused is in possession of a weapon of any kind and has a previous criminal conviction. The minimum sentence for third-degree possession is 2 years in prison, up to a maximum of 7 years.

Criminal Possession of a Weapon, Second Degree (PL 265.03)

A class C felony carries a minimum sentence of 3.5 years, up to 15 years in prison, and is applied when the accused is in possession of a loaded weapon and intends to use it unlawfully against another person, when the weapon is a machine/automatic firearm or otherwise disguised, or when someone possesses five or more firearms outside of their home or business.

Criminal Possession of a Weapon, First Degree (PL 265.03)

First degree possession is a class B violent felony that is levied when the accused illegally possesses 10 or more firearms, or if they are in possession of an explosive substance with the intent to use it. The mandatory minimum sentence for criminal possession of a weapon in the first degree is 5 years in prison, up to a maximum of up to 25 years.

Criminal Use of a Firearm (P.L. 265.08 & 265.09)

Criminal use of a firearm differs from simple possession in that a criminal use charge requires the weapon to be used when committing a class C or class B felony, such as second degree burglary or first degree rape. The weapon must also be loaded and capable of causing serious injury or death. This charge may be applied if the person simply displays what appears to be a firearm of any kind during the commission of the felony in question.

There are two types of criminal use charges: second degree and first degree. Second degree criminal use, a class C felony, carries a maximum sentence of up to 15 years in prison. Criminal use of a firearm in the first degree is a class B felony and can be sentenced to up to 25 years. Both charges can be levied in addition to penalties for the underlying felony in which the firearm was used.

Proving “Intent to Use”

Whether or not intent was a factor can determine the severity of weapons possession charges. If you are accused of assaulting or threatening another person with an instrument that could cause harm, including dangerous objects such as a baseball bat, broken bottles, lengths of wood or metal, or anything else that could be construed as a weapon, you may be charged with criminal intent.

Defending Yourself Against Criminal Weapons Charges

With the severity of charges for possession of even simple weapons in New York, you could easily find yourself facing a long prison sentence, as well as large fines and other penalties, and a criminal record, which could impact your ability to get a job, a loan for school or business, or maintain immigration status. Having an experienced criminal defense lawyer handle your case is your best chance to get charges reduced or dropped, have your case dismissed, or receive a not guilty verdict at trial.

If you are facing the prospect of weapons possession or use charges, contact Tully Rinckey today and find out how our team of attorneys can help with your case.

Peter is the Managing Partner at Tully Rinckey PLLC’s Rochester Office, where he practices criminal defense. With over 30 years of criminal defense experience, Peter has handled thousands of criminal cases, including violations, misdemeanors, felonies, and appeals. He has primarily represented defendants in felony cases in both state and federal courts. He can be reached at info@tullylegal.com or at (888)-529-4543.