Long Island Guns and Weapons Defense Lawyer
What Are Weapons Crimes?
Under New York law, some of the most serious offenses a person can receive are charges involving the possession and/or use of a weapon. Even the lowest tier of these crimes carries a possible penalty of up to one year in jail, and it can take very little to increase the seriousness of the crime and, consequently, the possible penalties.
What are the Different Weapon Possession Charges?
Like many criminal laws in New York state, weapon possession crimes are tiered according to the severity of the crime and the harshness of the potential penalties. While a fourth degree charge may be only a misdemeanor, a first degree charge is a very serious felony. Unlike some other criminal charges, however, even the lowest level weapons charge is a serious matter.
Fourth Degree Criminal Possession of a Weapon
It is remarkably easy for someone to find themselves with the misdemeanor charge of fourth degree criminal possession of a weapon. An individual may be charged with this crime depending upon how they use certain instruments, but for some weapons, the mere possession is enough to support a charge. For instance, if a person is in possession of a switchblade or gravity knife, metal or plastic knuckles, bludgeon, or shirkin (“Kung Fu star”), that person can be charged merely for possessing those weapons. Other weapons like daggers, knives, and imitation pistols require the intent to use these weapons unlawfully against another.
This charge is exceptionally broad because it also includes the possession of a rifle shotgun or firearm on school property; possession by someone who has been convicted of a felony or serious offense; possession by someone who is not a citizen of the United States; possession by someone who is not suitable to possess a rifle or shotgun; possession of explosive ammunition; and possession of armor piercing ammunition with the intent to use it unlawfully against another.
Fourth Degree Criminal Possession of a Weapon is a Class A misdemeanor and could lead to up to one year in jail and as much as $1,000 in fines.
Third Degree Criminal Possession of a Weapon
This charge is considered a violent felony. One of the most common ways to get charged with Third Degree Criminal Possession of a Weapon is by having a prior criminal conviction and committing a crime qualifying for Fourth Degree Criminal Possession of a Weapon. Even without a prior crime, the possession of certain weapons can ensure a third degree charge. These weapons include bombs, firearm silencers, machine guns, disguised guns, assault weapons, or a firearm, rifle, shotgun, or machine gun that has been defaced to conceal a crime or the identity of the weapon. Firearms with large capacity ammunition feeding devices also qualify under this tier.
Additionally, third degree possession applies when someone previously convicted of certain misdemeanors or felonies in the last five years and that person possesses more than two firearms at a place other than the person’s home or business. If a person has committed drug trafficking or any violent felony while possessing an unloaded firearm, that person can also be charged with third degree criminal possession of a weapon. This class D felony carries a potential penalty of two to seven years in prison
Second Degree Criminal Possession of a Weapon
This class C felony carries a potential jail time of 3.5 years to as many as 15 years in prison. Second Degree Criminal Possession of a Weapon includes possessing five or more firearms or a loaded firearm, unless the possession is in the person’s home or place of business. This crime also includes the intent to use a machine gun, loaded firearm or disguised gun unlawfully against another.
A person may even be charged with Aggravated Criminal Possession of a Weapon if the person, while committing Second Degree Criminal Possession and also committing a violent drug trafficking felony.
First Degree Criminal Possession of a Weapon
This crime applies to only two scenarios: possessing an explosive substance with intent to use it unlawfully or possessing ten or more firearms. Unlike other tiers, there is no restriction on where the possession of those firearms takes place. This is a class B felony can carry a prison sentence of as much as 25 years.
Unlawful Possession of Weapons by Persons under Sixteen
Unless the weapon is being used properly according to hunting regulations, it is illegal for a person under sixteen years old to possess not only firearms and dangerous knives, but also air guns, spring guns, and guns using blank cartridges. A minor who violates this law is adjudged a juvenile delinquent.
What is Criminal Use of a Firearm?
There are only two degrees of criminal use of a firearm, and both charges are serious felonies that can worsen the underlying criminal charges.
Second Degree Criminal Use of a Firearm
This class C felony may be added to a person’s list of charges for committing any other class C violent felony, if while committing that felony, a loaded deadly weapon is in that person’s possession or that person displays what appears to be a a firearm. This means that even if the supposed firearm isn’t real or isn’t loaded, if it is shown, this charge is applicable and could result in a prison sentence of up to 15 years.
First Degree Criminal Use of a Firearm
If a person commits a class B violent felony while in the possession of a deadly weapon or displays something that appears to be a firearm during the commission, that person may be charged with Criminal Use of a Firearm in the First Degree.
First Degree Criminal Use of a Firearm also adds one unique facet to sentencing. Though many crimes that rely on similar facts and circumstances will essentially run concurrently, that is not the case for first degree criminal use. If a person is convicted on a first degree charge, five years of that sentence may run consecutively to other related crimes.
What Constitutes a Criminal Sale of a Weapon?
A person can be charged with the criminal sale of a weapon for illegally selling one or more weapons. The severity of the charges, as well as their penalties, increases as the number of weapons sold increases.
Third Degree Criminal Sale of a Firearm
A person can be charged with third degree criminal sale of a firearm if that person is not allowed under law to possess a firearm and sells a firearm or large capacity ammunition feeding device. That person may also be charged for exchanging, disposing of, or giving the firearm away or even just owning a firearm with the intent to sell it. This class D felony carries a potential sentence of as many as seven years in prison.
Second Degree Criminal Sale of a Firearm
Someone can qualify for the class C felony of second degree for illegally selling, giving away, exchanging or disposing of to another five or more firearms. This can be done at once or may be done in total over one year. As a class C felony, someone charged under this statute could serve as many as 15 years in prison.
First Degree Criminal Sale of a Firearm
Similar to second degree criminal sale, First Degree Criminal Sale of a Firearm involves the illegal selling, giving, or disposal of multiple firearms, either at once or over the course of a single year. If a person sells 10 or more firearms, they may find themselves faced with this class B felony. New York does not take this crime lightly and it could lead to as many as 25 years behind bars.
Criminal Sale of a Firearm with the Aid of a Minor
If an adult—someone over the age of 18—either helps with, commands, or requests that someone under the age of 16 engage in the criminal sale of a firearm, that person may be charged with the Criminal Sale of a Firearm with the Aid of a Minor. This is a class C felony, and like Second Degree Criminal Sale of a Firearm, this crime carries a potential penalty of up to 15 years in prison.
Criminal Sale of a Firearm to a Minor
A person may be charged with Criminal Sale of a Firearm to a minor for selling a firearm to someone who is or appears to be less than nineteen years old and is not licensed to possess a firearm. This charge is a class C felony. This charge could lead to as many as 15 years imprisonment.
Can someone be charged for Illegally Purchasing or Disposing of a Weapon?
There are a number of scenarios that can lead to charges for Criminal Purchase or Disposal of a Weapon. If a person knows they are prohibited from or ineligible to possess a firearm, that person may be charged if they buy the weapon. A person may be charged for buying a firearm for someone who is prohibited from or ineligible to possess a firearm. The person selling or otherwise disposing of a firearm to someone they know is ineligible to possess a firearm may also be charged with this class D felony. This charge could lead to a possible prison sentence of up to seven years in prison.
What Role Does Presumption Have in Weapons Charges?
Under New York state law, the state is allowed to make a number of presumptions about who is in possession of certain illegal weapons. A person does not need to be physically holding the weapon or be the person closest to it. If a machine gun is found in a home, it is presumed that all people occupying the home are in possession of the weapon. These presumptions also apply to other weapons like switchblades, daggers, metal knuckles, and other illegal weapons in vehicles. There may be the presumption that these are the possession of people in the vehicle or the driver.
Possession of certain serious weapons allows the presumption that these weapons like a dagger, stiletto, or unlawfully possessed firearm will be used for an unlawful purpose. Having a defaced firearm or machine gun is evidence that the person who possesses it also defaced it. Having five or more firearms is evidence enough to assume that person is intending to sell those weapons.
What Can Lead to Longer Sentences?
Judges have some discretion over sentencing. Though some charges may carry a mandatory minimum sentences, a judge may still choose whether or not to apply the maximum penalty. Often, judges will look at the whole picture at sentencing, not necessarily the incident that lead to the weapons possession charge. For instance, a history of criminal behavior may make a judge less likely to impose a lighter sentence. Judges may also be less lenient when they feel that the person charged shows no remorse or has not learned from the experience, so a second offense in the time since the person was original charge can mean a tougher sentence.
What Can Improve a Case Involving a Weapons Charge?
One of the first and most important steps is to get representation. There is no substitute for an experienced attorney acting as a person’s advocate in a case involving a weapons charge. Not only do attorneys fight for you at trial, they know what to file with the court and when to keep out improper and irregular evidence. Local attorneys are also familiar with the judges and prosecutors to know when a plea deal might be better than the gamble of going to trial.
There are a number of things that a person facing charges, as well of their loved ones, can do to assist in their case. One important aspect is creating lists of possible evidence and eyewitnesses that can be given to the attorney working on the case. Another is identifying positive character traits and witnesses who can speak to a person’s good reputation or good behavior. Even if a guilty verdict is handed down, these character witnesses can be the difference between a minimum and a maximum sentence.
If you have been arrested for Gun or Weapons Possession in Nassau, Suffolk or Queens County, call Scott J. Limmer without delay
You can contact Scott by phone at 516-742-2300 to speak to him immediately. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.
Nassau County Criminal Law Office
200 Old Country Road Suite 2 S Mineola, NY 11501 Telephone: 516-742-2300
Queens County Criminal Law Office
80-02 Kew Gardens Road Suite 300 Kew Gardens, NY 11415 Telephone: 718-742-6300