Articles Posted in Gun Possession

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NY Criminal Defense and New York Penal Law 265.03 – Criminal Possession of a Weapon in the Second Degree

Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 265.03, is unquestionably one of the most serious criminal charges that an individual can face in NYC or anywhere in New York. That is right. Even if you have a permit in Colorado, Georgia or Alabama, if you possess than firearm in a hotel room in Manhattan or at JFK or LaGuardia Airports, the crime has still been committed if you do not have a permit in New York. The New York criminal defense attorneys have not only successfully represented clients charged with possessing loaded guns, but prosecuted individuals charged with this crime as Assistant District Attorneys under Robert Morgenthau. The following is a “primer” for those not familiar with this offense and the strict liability it seems to impose on the accused.

The Second Amendment of the U.S. Constitution states: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Gun owners often cite the Second Amendment when arguing against gun restrictions. However, gun owners, dealers, and collectors must follow state and federal laws if they wish possess a firearm, or run a business selling guns. Read on to learn more about state and federal gun laws.

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Criminal sale of a firearm in the first degree is committed by any person when such person: (1) unlawfully sells, exchanges, gives or disposes of to another ten or more firearms; or (2) unlawfully sells, exchanges, gives or disposes of to another person or persons a total of ten or more firearms in a period of not more than one year. Criminal sale of a firearm in the first degree is a class B felony.

Criminal possession of a firearm is one of the more common charges addressed by Article 265 of the New York Penal Law, which covers crimes relating to firearms and other dangerous weapons. Criminal possession of a firearm is not broken down into degrees, but is rather one “flat” crime, classified as an E Felony.

Under Article 265, a firearm is defined as a:

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Florida to New York Firearm Trafficking Ring Disarmed: Brooklyn DA Announces Arrest and 105 Count Indictment

The Brooklyn District Attorney’s Office has announced that along with the 105 count indictment against defendants for Criminal Possession of a Weapon and Criminal Sale of a Firearm, the NYPD has taken 56 guns off the streets of New York.

According to the Brooklyn District Attorney’s Office: “The indictment includes charges for the sale or possession of 46 guns – including 28 semiautomatic pistols, six revolvers, three assault rifles, four sawed-off shotguns, and five rifles – to undercover detectives. On four occasions, detectives purchased a total of 40 guns. A fifth sale was arranged, but instead of carrying it out, officers raided the defendant’s Brooklyn safe house and 2 confiscated six additional guns. Through the investigation, ten additional guns were taken off the streets.”

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Under the New York Penal Law, a person is guilty of criminal possession of a weapon in the third degree when: (1) Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; or (2) Such person possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or (3) Such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun; or (5) (i) Such person possesses three or more firearms; or (ii) such person possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this chapter within the five years immediately preceding the commission of the offense and such possession did not take place in the person’s home or place of business; or (6) Such person knowingly possesses any disguised gun; or (7) Such person possesses an assault weapon; or (8) Such person possesses a large capacity ammunition feeding device. For purposes of this subdivision, a large capacity ammunition feeding device shall not include an ammunition feeding device lawfully possessed by such person before the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision, that has a capacity of, or that can be readily restored or converted to accept more than seven but less than eleven rounds of ammunition, or that was manufactured before September thirteenth, nineteen hundred ninety-four, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition; or (9) Such person possesses an unloaded firearm and also commits a drug trafficking felony as defined in subdivision twenty-one of section 10.00 of this chapter as part of the same criminal transaction; or (10) Such person possesses an unloaded firearm and also commits any violent felony offense as defined in subdivision one of section 70.02 of this chapter as part of the same criminal transaction. Criminal possession of a weapon in the third degree is a class D felony.

Whether you are charged in NY with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law 265.01, for possessing a revolver, firearm, pistol, switchblade, gravity knife or even metal knuckles, under certain circumstance prosecutors can “bump up” or raise the level of your crime from a misdemeanor to a felony. The basis of this “bump up” to Criminal Possession of a Weapon in the Third Degree, pursuant to New York Penal Law 265.02(1), is whether you have any prior criminal convictions.

Federal law regulates gun ownership to some degree, including placing restrictions on the ownership of certain types of firearms. The National Firearms Act (NFA), for instance, places restrictions on the sale or possession of short-barreled shotguns, machine guns, and silencers. In order to purchase one of these “NFA firearms or devices,” owners must go through an extensive background check, purchase a tax stamp for the manufacture of the firearm or device, and register the weapon with the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ NFA registry. However, it should be noted that some states, including New York and California, have prohibited the ownership of these types of firearms and devices.

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A New York Criminal Lawyer said that, conviction of a criminal possession of a weapon case can also create significant problems for a defendant who is not a citizen, even if the defendant is a legal resident. Weapons (especially guns) convictions can cause a non-citizen to be deported, denied citizenship, or excluded from legal entry to the United States at the border. This can be true even if the conviction is for the A misdemeanor criminal possession of a weapon in the fourth degree. Of course a qualified immigration lawyer needs to be consulted with respect to any individual situation, but a non-citizen who is contemplating pleading guilty even to the misdemeanor form of criminal possession of a weapon needs to be aware of the potential difficulties.

The First Department, a court that hears criminal appeals stemming from parts of NYC, recently dealt with an interesting issue that is right on point for cases involving weapon possession. In People v. Ford, 58 A.D.3d 242 (1st Dept. 2008), the Court addressed the question of whether “In order to convict a defendant of criminal possession of a weapon in the third degree for unlawfully possessing a switchblade knife that was disguised as a cigarette lighter, must the prosecution prove that the defendant knew that he or she possessed a switchblade knife or at least that the object possessed functioned as a weapon?”

The Court answered the question of knowledge by finding that “although the statute includes no express element of mental culpability and the offense has often been referred to as a crime of ‘strict liability,’ existing constitutional, statutory and case law requirements mandate that the prosecution prove that defendant knew that the object he possessed actually functioned as a weapon.”

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In New York criminal possession of a weapon, for the purposes of “gun cases” is classified into three “degrees” or levels of seriousness. Criminal Possession of a Weapon in the Second Degree, Third Degree, and Fourth Degree. Criminal Possession of a Weapon in the Second Degree is a class C felony, Third Degree is a class D felony, and Fourth Degree is a class A misdemeanor. The class C felony is punishable by a maximum of 15 years in prison, the D felony by a maximum of 7 years in prison, and the A misdemeanor by a maximum of 1 year in jail. Also, there is a theoretical 1 year mandatory jail sentence on any felony gun conviction.

Under the New York Penal Law, a person is guilty of criminal possession of a weapon in the fourth degree when: (1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sand club, wrist-brace type slingshot or slingshot, shirked or “Kung Fu star”; or (2) He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another; or (3); or (4) He possesses a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm, and has been convicted of a felony or serious offense; or (5) He possesses any dangerous or deadly weapon and is not a citizen of the United States; or (6) He is a person who has been certified not suitable to possess a rifle or shotgun, as defined in subdivision sixteen of section 265.00, and refuses to yield possession of such rifle or shotgun upon the demand of a police officer. Whenever a person is certified not suitable to possess a rifle or shotgun, a member of the police department to which such certification is made, or of the state police, shall forthwith seize any rifle or shotgun possessed by such person. A rifle or shotgun seized as herein provided shall not be destroyed, but shall be delivered to the headquarters of such police department, or state police, and there retained until the aforesaid certificate has been rescinded by the director or physician in charge, or other disposition of such rifle or shotgun has been ordered or authorized by a court of competent jurisdiction. (7) He knowingly possesses a bullet containing an explosive substance designed to detonate upon impact. (8) He possesses any armor piercing ammunition with intent to use the same unlawfully against another. Criminal possession of a weapon in the fourth degree is a class A misdemeanor.

You have been arrested in NYC and charged with Criminal Possession of a Weapon in the Fourth Degree, pursuant to New York Penal Law section 265.01, for possessing a gravity knife or a switchblade knife. Your NY criminal defense attorney gets you out of jail at your arraignment and now you need to work with him to put forth the strongest defense to protect your freedom and your rights. Well, fortunately for you, your criminal defense attorney is up to date on the law and experienced in weapons matters as well. In fact, you are knowledgeable about the law as it applies to Criminal Possession of a Weapon because.

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(d) any of the weapons, or functioning frames or receivers of such weapons, or copies or duplicates of such weapons, in any caliber, known as: (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models); (ii) Action Arms Israeli Military Industries UZI and Galil; (iii) Beretta Ar70 (SC-70); (iv) Colt AR-15; (v) Fabrique National FN/FAL, FN/LAR, and FNC; (vi) SWD M-10, M-11, M-11/9, and M-12; (vii) Steyr AUG; (viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and (ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12;

(e) provided, however, that such term does not include: (i) any rifle, shotgun or pistol that (A) is manually operated by bolt, pump, lever or slide action; (B) has been rendered permanently inoperable; or (C) is an antique firearm as defined in 18 U.S.C. 921(a)(16); (ii) a semiautomatic rifle that cannot accept a detachable magazine that holds more than five rounds of ammunition; (iii) a semiautomatic shotgun that cannot hold more than five rounds of ammunition in a fixed or detachable magazine; (iv) a rifle, shotgun or pistol, or a replica or a duplicate thereof, specified in Appendix A to section 922 of 18 U.S.C. as such weapon was manufactured on October first, nineteen hundred ninety-three. The mere fact that a weapon is not listed in Appendix A shall not be construed to mean that such weapon is an assault weapon; or (v) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or any of the weapons defined in paragraph

(d) of this subdivision lawfully possessed prior to September fourteenth, nineteen hundred ninety-four.

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New York Penal Law S 265.02 on Criminal possession of a weapon in the third degree, states that: A person is guilty of criminal possession of a weapon in the third degree when:

(1) Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; or

(2) Such person possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or

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The claim of error based on the court’s remarks to the voir dire panel is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. While it would have been preferable, in a case involving a terrorism charge, for the court to forgo the reference to jury service as a way to “speak back” to the 9/11 terrorists, we think it highly unlikely that the jurors misinterpreted this hortatory rhetoric as an invitation (in the words of defendant’s brief) to “vindicate their own rage at the terrorists by their treatment of case” that “undermined the impartiality of the proceedings.” Nothing in the court’s remarks likened defendant to the 9/11 terrorists; on the contrary, the court specifically explained that defendant was not being charged with politically motivated terrorism. Significantly, the trial took place a full six years after 9/11, and defendant does not claim that anything the jurors learned of his background might have caused them to connect him to the 9/11 terrorists. Further, given the vast scale of the 9/11 catastrophe, the distinction between those attacks and the crimes charged here was unmistakable.

We find unavailing defendant’s argument that the performance of his lead trial counsel was so deficient as to deny him effective assistance of counsel. To the extent defendant argues that counsel failed to make certain objections or to call certain witnesses, we presume, in the absence of a complete record developed by a motion to vacate the judgment pursuant to CPL 440.10, that counsel exercised professional judgment and strategic discretion in determining how to conduct the defense. In fact, the existing record reflects that counsel followed a coherent strategy that sought to show that defendant committed no crime beyond weapon possession, a charge that he was unlikely to defeat given the denial of his suppression motion. Further, counsel competently attacked the credibility of ES, the People’s main witness, and brought out the inconsistencies between his testimony and that of other witnesses. Ultimately, counsel obtained an acquittal on the second-degree murder charge, the most serious count of the indictment. While we do not condone counsel’s absences and tardiness, defendant fails to establish that these had any impact on the defense.

We reject defendant’s various arguments that his statements to the police should have been suppressed on his pretrial motion. We see no grounds for disturbing the suppression court’s determination, based on credible evidence, that the police committed no violation in entering defendant’s apartment when they first approached him for questioning.

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While we reject defendant’s other challenges to his conviction, we find that the evidence is not legally sufficient to establish that he acted with the requisite intent to render his offenses crimes of terrorism. Specifically, even assuming in the People’s favor that the Mexican-American residents of the St. James Park area may constitute “a civilian population” under Penal Law § 490.25(1), the evidence was insufficient to support a finding that defendant committed his crimes with the intent to intimidate or coerce that “civilian population” generally, as opposed to the much more limited category of members of rival gangs. We therefore reduce the convictions for crimes of criminal terrorism to the corresponding specified crimes as lesser included offenses, and remit for resentencing on those counts.

In arguing for upholding the convictions for committing the specified offenses as crimes of terrorism, the People rely heavily on evidence that the SJB sometimes preyed on area residents who were not gang members. Specifically, the People point to evidence that the SJB robbed patrons of a certain restaurant on Jerome Avenue and engaged in extortion of a local house of prostitution. However, the People identify nothing in the record from which it could reasonably be inferred that the actions of defendant and the other SJB members on the night in question were motivated by the desire to intimidate the Mexican-American community of the St. James Park area. Indeed, as previously noted, the incident did not even occur within the SJB’s territory, the home of the “civilian population” that, under the People’s theory, the SJB intended to intimidate or coerce. Moreover, it should be borne in mind that a “crime of terrorism” within the meaning of Penal Law § 490.25(1) is not established unless the alleged terroristic intent is connected to the particular specified offense underlying the charge. To paraphrase a familiar legal maxim:” Proof of terroristic intent in the air, so to speak, will not do'”. In any event, here, we see no evidence of intent to terrorize the Mexican-American community of the St. James Park area generally, whether connected to or disconnected from the underlying specified criminal offenses.

To the extent the People argue, as they did at trial, that members of other Mexican-American gangs in the SJB’s area of the Bronx qualify as “a civilian population” under Penal Law § 490.25(1), we find this argument unavailing. To decide this appeal, we need not define the minimum size of “a civilian population” that may be the target of terrorism for purposes of Penal Law article 490 10. Rather, it suffices to observe that the term “to intimidate or coerce a civilian population,” in the context of the aforementioned legislative findings, implies an intention to create a pervasively terrorizing effect on people living in a given area, directed either to all residents of the area or to all residents of the area who are members of some broadly defined class, such as a gender, race, nationality, ethnicity, or religion. The intention by a gang member to intimidate members of rival gangs, when not accompanied by an intention to send an intimidating or coercive message to the broader community, does not, in our view, meet the statutory standard. Domestic violence often resulted.

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