The law restricts certain people from possessing firearms, ammunition, and weapons. The law also restricts anyone from being in possession of certain firearms, ammunition, and weapons. Violating any of these laws can land you in some very serious legal trouble.
Both federal and New York state laws do not take firearm possession charges lightly. Most of the charges are felonies. This is legal trouble that you don’t need, especially since it could follow you for the rest of your life and affect your most basic civil rights.
A criminal defense attorney may be able to help you avoid the consequences of illegal firearm possession, including getting the case dismissed, dropped, or reduced, so the penalties are not as harsh. If you need post-conviction relief such as expungement or sealing your records, a criminal defense attorney can help with that as well.
The point is that firearms possession charges are serious offenses at the state and federal levels. You can’t afford to go it alone. You need solid representation on your side.
Overview of Firearm and Weapons Possession
The law is very clear about what firearms and weapons are illegal to possess and the circumstances and situations that make it illegal to possess them.
The key word here is “possess.”
The legal definition of possession is the ownership, control, or occupancy of any object, asset, or property by a person.
This means that if you have physical custody of, own, control, or have the knowledge and the ability to control a firearm, you are in possession of it. You don’t necessarily have to have physical contact with it.
Federal Firearm and Weapons Possession Laws
There are several federal laws regarding the possession of firearms and weapons.
18 U.S. Code § 922 – Unlawful acts
(a)(3) It is illegal for a person to possess a firearm that was purchased or obtained by someone in a different state from the one they are in and transported over state lines in order for the person to take possession of it. Only exceptions are licensed importers, licensed manufacturers, licensed dealers, or licensed collectors.
(g) It is illegal for any person to be in possession of a firearm, ammunition, or weapon, to ship or transport in interstate or foreign commerce, or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce if
(1) they have been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) they are a fugitive from justice;
(3) they are an unlawful user of or addicted to any controlled substance
(4) they have been adjudicated as a mental defective or have been committed to a mental institution;
(5) they are an alien—
(A)illegally or unlawfully in the United States; or
(B) exception: they have been admitted to the United States under a nonimmigrant visa
(6) they were discharged from the Armed Forces under dishonorable conditions;
(7) they were a citizen of the United States but renounced their citizenship;
(8) they are subject to a court order that—
(A) were issued after a hearing and they received actual notice, and had an opportunity to participate;
(B) restrains them from harassing, stalking, or threatening an intimate partner or their child, or engaging in other conduct that would place an intimate partner or their child in reasonable fear of bodily injury, and
(C)
(i) the person represents a credible threat to the physical safety of the intimate partner or child; or
(ii) it explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury
(9) they have been convicted in any court of a misdemeanor crime of domestic violence,
(h) It is illegal for any person employed by someone described in any of the paragraphs of subsection (g) (if they are aware of that person’s status) to, during the course of their employment
(1) receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce
(j) It is illegal for any person to receive, possess, conceal, store, barter, sell, or dispose of any stolen firearm or stolen ammunition.
(l) It is illegal for any person to knowingly import or bring into the United States or any possession thereof any firearm or ammunition, or receive or possess it.
(n) It is illegal for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship, transport, receive, or possess in interstate or foreign commerce any firearm or ammunition.
(o)(1) It is illegal for any person to transfer or possess a machinegun. (some exceptions apply)
(p)(1) It is illegal for any person to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm—
(A) that has had the grips, stocks, and magazines removed to make it undetectable to security
(B) has been altered so that it is not detectable by the types of x-ray machines commonly used at airports
(2)(A) It is illegal for any person to knowingly possess a firearm at a place that they know, or have reasonable cause to believe, is a school zone (some exceptions apply)
(s)(4) If a person transfers a handgun and then learns from a chief law enforcement officer it is illegal for the person who received the gun to receive or possess it because it violates Federal, State, or local law shall, the person who transferred the gun has 1 business day after receiving the request to report the transfer
(x)(2) It shall be unlawful for any person who is a juvenile (younger than 18 years old) to knowingly possess—
(A) a handgun; or
(B) ammunition that is suitable for use only in a handgun.
Firearm and Weapons Possession Laws in New York
New York law makes it illegal for firearms and weapons to be in a person’s possession in certain circumstances and situations.
New York Penal Law – Article 265
265.01 – Criminal possession of a weapon in the fourth degree
It is illegal to possess any type of firearm, ammunition, or weapon when the person intends to use it unlawfully against someone else, is a convicted felon, is not a U.S. citizen, or has been certified (by the director or physician in charge of any hospital or institution for mental illness, public or private) not suitable to possess a rifle or shotgun.
265.01-A – Criminal possession of a weapon on school grounds
It is illegal for any person to knowingly possess a firearm, shotgun, or rifle in or upon a building or grounds owned by or used for educational purposes including schools, colleges universities, etc.
265.01-B – Criminal possession of a firearm
It is illegal to possess a firearm that has not been registered.
265.02 – Criminal possession of a weapon in the third degree
It is illegal for any person to own a weapon such as any explosive or incendiary bomb, bombshell, firearm silencer, machine gun (or simulation of such), the firearm that has been defaced for the reason of concealment, possesses three or more firearms, assault weapon, large capacity ammunition feeding device. It is also illegal for a convicted felon to possess a weapon or firearm and to possess an unloaded firearm and commit any violent felony.
265.03 – Criminal possession of a weapon in the second degree
It is illegal for a person to possess a machine gun, loaded firearm, or disguised gun with the intent to use them illegally against someone else. It is also illegal for a person to possess five or more firearms or any loaded firearm except when in the person’s home or place of business.
265.04 – Criminal possession of a dangerous weapon in the first degree
It is illegal for any person to possess any explosive substance with the intent to use it illegally against another person or someone’s property. It is also illegal to possess ten or more firearms.
265.05 – Unlawful possession of weapons by persons under sixteen
It is illegal for any person under the age of 16 to possess any air gun, spring gun, or other instrument or weapon.
265.06 – Unlawful possession of a weapon upon school grounds
It is illegal for any person age 16 or older to knowingly possess any air gun, spring gun, or other instrument or weapon in or upon any building or grounds used for educational purposes without the written authorization of that institution.
Penalties for Federal Firearm and Weapons Possession Convictions
Most of the federal firearm and weapon possession crimes listed in 18 U.S. Code § 922 – Unlawful Acts carry at least a 10-year prison sentence. However, if the defendant has three or more prior convictions for a drug trafficking felony or a felony crime of violence, they could get a minimum of 15 years in prison without parole.
Possession of a firearm in relation to or in furtherance of a federal crime of violence or drug felony carries a minimum prison sentence of 5 years and a maximum of life without parole or the death penalty if the use of the firearm resulted in death.
Possession of a firearm in a school zone carries a maximum of 5 years in prison and possession of illegal firearms and weapons such as a sawed-off shotgun or firearm silencer carries a prison term of 5 to 10 years, depending on the weapon and circumstance.
Penalties for Firearm and Weapons Possession Convictions in New York
Almost all penalties for firearm and weapons possession charges in New York carry some jail or prison time. The more serious the crime, the more serious the punishment.
265.01 – Criminal possession of a weapon in the fourth degree
- Class A Misdemeanor
- Maximum 364 days in jail
- Maximum $1,000 fine or double the amount the defendant gained from the crime
265.01-A – Criminal possession of a weapon on school grounds
- Class E Felony
- Maximum probation 4 years
- Minimum probation 1 1/3 years
265.01-B – Criminal possession of a firearm
- Class E Felony
- Maximum probation 4 years
- Minimum probation 1 1/3 years
265.02 – Criminal possession of a weapon in the third degree
- Class D Felony
- Maximum 7 years in prison
- Maximum probation 7 years
- Minimum probation 1 year
265.03 – Criminal possession of a weapon in the second degree
- Class C Felony
- Maximum 15 years in prison
- Minimum 1-year probation
265.04 – Criminal possession of a dangerous weapon in the first degree
- Class B Felony
- Maximum 25 years in prison
- Minimum 1 year in prison
265.05 – Unlawful possession of weapons by persons under sixteen
- Violator will be adjudged a juvenile delinquent
265.06 – Unlawful possession of a weapon upon school grounds
- Violation
- Maximum 15 days in jail
Defenses for Firearm and Weapons Possession Charges
Defenses for firearm and weapons possession charges will vary from case to case. Your criminal defense attorney will determine the best course for your case.
Some of the common defenses for firearm and weapons possession charges include:
- The defendant was not in possession of any firearm or weapon
- The firearm or weapon is an antique
- It was a homemade gun and not subject to certain laws
- The defendant did not knowingly possess the weapon
- The defendant did not have the intent to possess the weapon
- Illegal search and seizure
- The defendant is legally allowed to possess a weapon or firearm
If you are charged with unlawful or criminal possession of a firearm or weapon in New York or in the federal legal system, you need to take it very seriously. Some of these charges, if there is a conviction, can carry serious penalties.
At The Litvak Law Firm, we have the experience necessary to successfully defend clients in firearms and weapons possession cases. And we can help you.
Call today at (718) 989-2908 for your free consultation and get the legal representation that you deserve. Don’t wait, call now.