Felony convictions have a way of sticking with you even after you have paid your debt to society. Getting out of jail or prison does not mean that your life goes back to normal. In fact, your prison term or jail time is really just the beginning of your punishment. There are certain rights that you lose when convicted of a felony.
Gun ownership and possession is a big one.
People convicted of a felony are prohibited from owning or possessing a gun. This is true under federal law as well as most state laws, including in New York.
Being found in possession of a firearm as a felon can put you right back in prison. If you have other charges, the penalties will only increase.
However, if owning a gun is so important to you, you can seek post-conviction relief. Until then you need to abide by the law, or it will get you into some legal troubles.
Overview of Felon in Possession of a Firearm
Felon in possession of a firearm is a serious offense that carries severe penalties at both the federal and state level. A conviction can bring imprisonment and steep fines. It is a felony, a serious felony, which can have long-term effects on your life.
Essentially, the charge means that someone who has been convicted of a felony has a firearm or ammunition in their possession, or they ship or transport it. Under New York and federal law, it is illegal for a convicted felon to possess a gun.
The gun or firearm can be in the individual’s vehicle, in their home, or on their person although it can also include the person’s worksite or place of business as well as their property which includes outbuildings and other structures.
Transporting a firearm or ammunition over state lines or out of the country will usually land the defendant in federal court. If the crime occurs on federal property such as a federal building, in a federal park, or other property owned or occupied by the federal government, it becomes a federal crime and the person can be investigated and arrested by federal authorities, ultimately landing in federal court.
Federal Felon in Possession of a Firearm
Under federal law, it is illegal for a convicted felon to ship, possess, or transport any firearm or ammunition that has been or is being distributed via foreign or interstate commerce. It does rely on the law of the state or jurisdiction where the proceedings took place, but the law is very clear.
18 U.S. Code § 921 – Definitions
- (20)The term “crime punishable by imprisonment for a term exceeding one year” does not include—
- (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
- (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
- What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
18 U.S. Code § 922 – Unlawful acts
- (g) It shall be unlawful for any person—
- (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
- to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Felon in Possession of a Firearm in New York
Under New York law, a felon in possession of a firearm charge is called criminal possession of a weapon. There are four degrees to this crime and each degree has specific terms. They rank from a Class A Misdemeanor to a Class B Felony.
These are very serious crimes.
New York Penal Law § 265.01 – Criminal possession of a weapon in the fourth degree
- A person is guilty of criminal possession of a weapon in the fourth degree when:
- (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
New York Penal Law § 265.02 – Criminal possession of a weapon in the third degree
- 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
- (5) (ii) they possess a firearm and have 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
- (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
New York Penal Law § 265.03 – Criminal possession of a weapon in the second degree
- A person is guilty of criminal possession of a weapon in the second degree when:
- (1) with intent to use the same unlawfully against another, such person:
- (a) possesses a machine-gun; or
- (b) possesses a loaded firearm; or
- (c) possesses a disguised gun; or
- (2) such person possesses five or more firearms; or
- (3) such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person’s home or place of business.
- (1) with intent to use the same unlawfully against another, such person:
New York Penal Law § 265.04 – Criminal possession of a dangerous weapon in the first degree
- A person is guilty of criminal possession of a weapon in the first degree when such person:
- (1) possesses any explosive substance with intent to use the same unlawfully against the person or property of another; or
- (2) possesses ten or more firearms.
Can a Felon Live with Someone who Owns Guns?
A convicted felon cannot possess any firearms. They cannot legally purchase any firearms. However, a spouse, significant other, family member, or roommate may own a firearm or want to own a firearm. Provided they are not legally barred from doing so, they do have the right under the Second Amendment of the United States Constitution.
Where does that leave the felon?
If the person who lives with the felon wants to exercise their right to gun ownership, things can get a little sticky. True, possession and ownership are not the same. The felon is barred from possession of the firearm.
BUT the felon can be charged with constructive possession if two criteria are met:
- The felon is aware that the gun or firearm is in the home
- The felon has access to the firearm and can get or maintain control over the firearm
Even if the felon never touches the firearm, he or she can still be found in possession. It is best to not live in a home where a person who lives there owns a firearm. It can get you in trouble.
Penalty for Federal Felon in Possession of a Firearm Conviction
The United States Sentencing Guidelines sets harsh penalties for a felon in possession of a firearm conviction. It assigns a base offense level that falls between 12 and 26. According to the guidelines, this equates to a minimum of 10 months and a maximum of 78 months in prison before considering any aggravating or mitigating circumstances surrounding the crime.
Overall, it is a federal Class D felony for a felon to possess a firearm and the penalty is a maximum of 10 years in prison with 3 years of supervised release, and a maximum fine of $250,000.
Penalty for Conviction of Felon in Possession of a Firearm in New York
A felon who is caught with a firearm or ammunition in his or her possession in New York is likely facing time in prison. The sentences are not light.
New York Penal Law § 265.01 – Criminal possession of a weapon in the fourth degree
- Class A Misdemeanor
- Maximum 1 year in jail
- Maximum 3 years probation
- Maximum fine $1,000
New York Penal Law § 265.02 – Criminal possession of a weapon in the third degree
- Class D Felony
- Minimum 2 years in prison
- Maximum 7 years in prison
- Probation
New York Penal Law § 265.03 – Criminal possession of a weapon in the second degree
- Class C Felony
- Minimum 3½ years in prison
- Maximum 15 years in prison
- Probation
New York Penal Law § 265.04 – Criminal possession of a dangerous weapon in the first degree
- Class B Felony
- Minimum 5 years in prison
- Maximum 25 years in prison
- Probation
Defenses for Felon in Possession of a Firearm
There are several defenses that can be used for a felon who has been charged with possessing a firearm. These are some of the more common ones, but there may be others depending on the specifics of the case.
- The defendant had had his or her civil rights restored with firearm authority
- Illegal search and seizure
- The firearm was secured in a gun safe, and the felon does not have the combination or key to the save and therefore has no access to the firearm
- The firearm did not belong to the defendant
- The defendant was not aware of the firearm and did not know it was in the house or car
If you are a convicted felon facing charges of owning or possessing a firearm, or if you are a felon and want to restore your firearms rights, you need a criminal defense attorney who knows the ropes and is committed to ensuring the best possible outcome for your case.
You need the Litvak Law Firm. Mr. Litvak has the experience, knowledge, and tenacity to fight for you in court from start to finish. He will be with you every step of the way and help ensure that your rights are protected. Call today at (718) 989-2908 and find out how he can help you.