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Throughout the United States and more specifically, in New York State and New York City, the issues of weapons possession—specifically firearms—have received much attention as new laws, Supreme Court rulings, and Second Amendment-related issues continue to change the landscape of firearm ownership and charges across the country.
New York has among the strictest gun-possession restrictions in the country. Despite this, it is not uncommon for individuals to be confused about what possessing a firearm entails. For example, simply because you are not physically carrying a firearm does not indicate that you are not legally in possession of one. As long as the weapon is considered to be within your domain—whether it be in your car or house—you would legally be considered in possession of a firearm, commonly referred to as constructive possession.
While it is not expected that New Yorkers should be aware of every gun charge and regulation outlined in the Penal Code, knowing what the basics are beyond just the Second Amendment when it comes to the possession and transportation of firearms, along with how to beat a gun charge, can be the difference between protecting your innocence and safety, or losing your future and freedom.
The regulations governing the possession of weapons are laid forth in Section 265 of the New York State Penal Code, which also goes into great length to describe the many sorts of weapons that are covered by this legislation. This includes the different types of firearms such as rifles and handguns, as well as other weapons such as stun guns and certain types of knives.
Further, it is not necessary for the pistol or revolver you own to be loaded in order for you to be charged with the much more serious violent crime of second-degree criminal possession of a weapon, according to New York Penal Law 265.03. The firearm in question only needs to be operational to violate NY Penal Law 265.01-b(1), and your possession of it is illegal because it is not registered or permitted in the area where you were arrested.
The penalties can range depending on the charge, but in short:
While these penalties range depending on what type and where the possession took place, any sort of criminal conviction regarding firearms can have a long-lasting impact on your life, so it is important to think hard before making any statements to law enforcement or allowing them to search your person or vehicle.
Along with possessing a firearm, there are also regulations in place for those looking to travel with their guns as well. Whether it be for sport, security, or any other reason, it is important to understand that if stopped by law enforcement and a gun is found on an individual’s person that they cannot lawfully possess in the state, the charges will be more than just a minor infraction. Even if a person is totally sincere and has a reasonable purpose for possessing a firearm while passing through the state, they could face a felony and incarceration for the possession/transportation of their firearm.
Regardless of whether they are carrying it openly or covertly, a person cannot possess a firearm in the state of New York unless they have the necessary licenses and permits. Without the necessary licensing, the individual breaks the law. Some states do not have any such licensing requirements, even for handguns, but that is not the case in New York. Further, even if the ammunition is not accessible or ready to be loaded into the firearm, the law will still consider the weapon to be loaded, which could result in even harsher charges and punishment. This is true even if the gun is unloaded and even if the gun owner took that precaution on purpose.
Also, whether a weapon is legal in any other state is not relevant under New York State law. Individuals possessing weapons that were legally obtained and registered in a different state may still find themselves facing criminal prosecution because the weapon was not properly registered in New York.
In New York, it is illegal for anybody to own a firearm without a license. A person needs a permit and a license for the areas in which they want to carry it, which is frequently divided down by county. Add to that the fact that, as one might anticipate, New York City has its own distinct and unique rules prohibiting the possession and transit of guns. One who is relocating to Manhattan, Brooklyn, or the Bronx from Rockland County or Dutchess County must obtain the necessary permits and approvals in order to bring their handgun into the city; otherwise, they are prohibited from doing so.
One of the most common instances where New Yorkers and other individuals can get in trouble when it comes to their gun ownership is hunting. While hunting is a fun past-time for many, there are many nuances with what counts as a legal hunting implement when it comes to hunting game.
For example, when hunting big game, you are allowed to hunt with shotguns, but only if they are 20 gauge or larger and fire a single projectile. When it comes to rifles, any centerfire rifle is allowed. In regard to handguns, any centerfire pistol or revolver is allowed, but the barrel length maximum is 16 inches. It is also important to realize that in addition to any hunting license, New York State also requires you to carry your NYS Pistol Permit and will not recognize permits issued by other states.
Further, there are different discharge ranges you must be aware of—outlined here on the DEC website—which if breached can result in not only your hunting license being threatened but also facing criminal action as well.
During the investigation process, a law enforcement officer may encounter evidence through a search and seizure. These can be conducted at your home, vehicle, or even on your person. This evidence is frequently relied upon by prosecutors at a trial. However, sometimes these searches are not conducted legally, and depending on the area that was searched, determines the amount of protection you have. Evidence obtained as a result of an illegal search cannot be used in the trial, however, whether the evidence is illegal or not is determined by a judge after arguments from both you and the prosecuting attorney. This is why it is important to consider discussing the facts and circumstances of your case with an experienced criminal defense attorney in that, should you be able to show that the evidence was obtained illegally, all evidence from the search becomes inadmissible at the trial. Furthermore, evidence obtained as a result of further searches based on the information from an illegal search could be deemed illegal as well.
Keep in mind that ignorance of the law is not an excuse. Carrying or keeping a firearm in a secured hard-sided case, while appropriate and reasonable, is also not a defense. The criterion is not whether you knew or didn’t know you had the firearm without the necessary permission in New York, but simply that you possessed the physical firearm. Although you may have mistakenly assumed that since your pistol or rifle had a license from Florida, New Jersey, Texas, or California, you could legally own or carry it in New York, this is untrue.
Ultimately, there are many different ways to mitigate concerns when it comes to your firearm-related conviction, but as touched upon prior, it is important that you consult with an experienced New York criminal defense lawyer who has experience when it comes to dealing with these matters. Our team of criminal defense attorneys at Tully Rinckey has experience in assisting clients with their firearm and Second Amendment-related matters and can inform and uphold your rights should you be alleged to be in criminal possession of a weapon.
Schedule a legal consultation today or get in touch to find out how we can help!
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 firstname.lastname@example.org or at (888)-529-4543.