According to Everytown Research, New York is second only to California when it comes to strict firearm laws. Therefore, it is no wonder that facing a weapon charge in New York also comes with strict penalties. However, it is important to understand that firearms are not the only weapons that can cause you to face weapon charges. Understanding how the state defines a weapon, what charges you might face, and what the terms possession and loaded mean when it comes to weapons is important to avoiding a weapon charge or having a good defense if you are charged for having a weapon. If you are facing a weapon charge or have questions regarding weapon ownership in New York, a skilled weapon defense attorney may be able to assist you. Call the Law Office of Benjamin Greenwald at (845) 567-4820 to schedule a complimentary consultation and review your legal needs.
What Is a Weapon Charge in New York?
NY PL §265.01 defines weapon charges as criminal possession of a weapon. This definition is for the most minimal weapon charge, which is a misdemeanor fourth-degree charge for possession of a weapon. The severity of the charge will depend on the type of weapon and whether it is loaded.
To be charged with a weapon charge, an individual does not have to have a firearm. These charges can be for non-firearm weapons as well. Non-firearm weapons that individuals have been charged for include knives, stun guns, brass knuckles, slingshots, dart guns, billy clubs, throwing stars, sandbags, chukka sticks, and blackjacks. This is not a complete list of weapons that one may face charges for. In addition, individuals may face unexpected weapon charges for BB, pellet, or paintball guns.
What Are the Weapon Charges You Can Face in New York?
There are several weapon charges that individuals may face in New York. Only one is a misdemeanor and the rest are felonies. These charges are based on the type of weapon, whether the weapon is used, whether it is loaded, and where the weapon is used or possessed.
Misdemeanor Charge
This is a fourth-degree weapon charge. While it can be the result of a firearm, this charge often results from the individual possessing a non-firearm weapon, such as a knife or dagger, stun gun, cane sword, bludgeon, plastic knuckles, shirken, or other weapon. This is a Class A misdemeanor and if convicted, the individual faces up to one year in jail. However, if the individual is charged with having this weapon on school grounds, they will instead be charged with a felony.
Felony Weapon Charges
Third, second, and first-degree weapon offenses are charged as felonies. These are charges that involve the actual use or deployment of a weapon. These charges can be applied to both firearms and other kinds of weapons.
Criminal Firearm Use
Criminal firearm use is a first or second-degree offense. NY PL § 265.08 and NY PL §265.09 indicate that an individual can be charged with a second-degree offense if they have a deadly weapon while committing a Class C violent felony or a first-degree offense if they have a deadly weapon while committing a Class B violent felony.
Class C violent felonies include sexual assault in the second degree, strangulation, burglary, or robbery. Class B violent felonies include rape in the first degree, assault in the first degree, kidnapping in the second degree, aggravated sexual abuse in the first degree, or attempted murder. If convicted of a second-degree weapon charge, an individual can face up to 15 years in prison, and if convicted of a first-degree weapon charge, they can face 25 years in prison. This is in addition to any sentences they may face for the other criminal charges.
Criminal Firearm Possession
Criminal firearm possession can be either a Class E, Class, D, or Class C felony. As a Class E felony, it is for possessing a firearm and faces one to four years in prison, plus fines of up to $5,000. As a Class D felony, it is a third-degree possession charge. A third-degree possession charge can be for possessing three or more weapons, having a previous criminal conviction for any crime, or knowingly possessing a weapon that was defaced to hide a crime or misrepresent its identification. Individuals convicted of a Class D felony face two to seven years in prison.
This charge can also be a second-degree Class C felony. This might include carrying a machine or automatic firearm. If convicted, the individual may face three and a half to fifteen years in prison. Finally, criminal firearm possession can be a first-degree Class B violent felony, which can lead to five to twenty-five years in prison if convicted.
What Is the Difference Between Actual and Constructive Possession?
There are two types of possession an individual can be charged with: actual and constructive. Actual possession means that the weapon was found on the individual’s person (on their body) or within easy reach of the individual. The weapon may be concealed or it may be clearly visible.
Constructive possession means that there are multiple people who could have control over the weapon. In this instance, the weapon is not found on anyone’s person. The weapon may be located in a nearby room, in a glove box, in the trunk of a vehicle, or another location that all of the individuals may have access to. If you have been charged with weapon charges due to constructive possession, the Law Office of Benjamin Greenwald may be able to assist you in building a defense or getting the charges reduced or dismissed.
What Is the Difference Between a Class E and a Class D Felony for Firearm Possession?
A Class E felony for firearm possession occurs when the person knows they are in possession of an operable, illegal, and dangerous weapon. A Class D felony is only in certain circumstances, such as if the individual has an existing criminal record, was carrying three or more weapons, if the individual has tampered with certain parts of the weapon, or if an assault weapon is involved.
Assault Weapon Charges in New York
In 2013, New York passed the Secure Ammunition and Firearms Enforcement (SAFE) Act. The SAFE Act mandates universal background checks to purchase firearms to prevent criminals and those with dangerous mental health conditions from buying firearms increases the penalties for those convicted of using illegal firearms, imposes a mandated life-in-prison sentence on individuals convicted of murdering a first responder, and imposes the toughest ban on assault weapons in the United States. This assault weapon restriction bans possessing, manufacturing, or transporting assault weapons in New York.
NY PL 265.00(22) defines an assault weapon as a semi-automatic rifle that can accept a removable magazine and also has at least one of the following:
- Thumbhole stock
- Folding or telescoping stock
- Grenade launcher
- Pistol grip protruding conspicuously beneath the weapon’s action
- Protruding grip or second handgrip that can be held by the non-trigger hand
- Bayonet mount
- Flash suppressor, muzzle brake, muzzle compensator, or a threaded barrel designed to accommodate one
How Can Someone Be Charged for a Loaded Weapon When There Was No Ammunition in the Firearm?
Many people assume that being charged with a loaded weapon means that the firearm had ammunition loaded into the chamber or magazine. However, New York law does not require ammunition to actually be loaded into the firearm for it to be considered loaded. The firearm can actually contain no ammunition whatsoever. Instead, under NY PL §265.00(15), a loaded firearm is one that is loaded with ammunition or any firearm for which the individual also has a quantity of ammunition with which to load it readily available. A loaded weapon charge increases the associated penalties and punishments for both the weapon charges and any other related criminal charges.
How Can a New York Weapon Charges Attorney Assist You?
New York is quite strict about weapons in general and firearms in particular. While there are circumstances under which individuals can carry weapons, including firearms, understanding the weapons laws of New York is crucial to avoiding a weapons offense charge. A knowledgeable weapon defense attorney may be able to assist you by explaining New York’s laws and explaining how and under which circumstances you may be able to carry a particular weapon. An attorney may also be able to assist you in gathering evidence and building a defense if you are currently facing weapon charges. Contact the Law Office of Benjamin Greenwald at (845) 567-4820 for answers to your questions or a review of your case during a complimentary consultation.
