New York State Firearms Charges 

Firearms charges are considered some of the most serious offenses in both in New York state and federal law. 

In New York State, gun charges are categorized based on: 

• whether the firearm is loaded or unloaded; 
• whether the possession of the firearm takes place inside the home; 
• whether the possession of the firearm takes place outside the home; and  
• weather there is an intent to use the firearm against another individual. 

Pistol Permits in New York State 

It is possible to get a pistol permit in the state of New York, although it is exceedingly rare to obtain a pistol permit in NYC.  So, possession of a weapon inside someone’s house without the intent to use the firearm unlawfully, against another individual, is not a crime if the person has a pistol permit. 

Possession of a Firearm Without a Permit Inside of Your Home 

Simple possession of a firearm inside your home, even without trying to use it against another individual, is unlawful without a permit.  Possession of a firearm inside your home and without a permit can be prosecuted and as a criminal possession of a weapon in the fourth degree (which is a Class A misdemeanor) and also as a criminal possession of a firearm (which is a Class E non–violent felony.) 

Possession of a Firearm Without a Permit Outside of Your Home

Under New York State law, in order for someone to be charged with criminal possession of a firearm in the Second Degree (a Class C non–violent felony) the possession of a gun has to either one be: 

• outside someone’s home; 
• outside of someone’s place of business; or 
• there was an intent for the gun to be used unlawfully against another. 

Prosecution for the Criminal Possession of a Firearm 

#1) The Gun Does Not Have to Be Loaded 

For the purposes of prosecution for the criminal possession of a weapon in the fourth degree, and criminal possession of a firearm, the gun does not have to be loaded.  

#2) The Gun Must Be Operational 

The state of New York, however, requires that a gun be operational in order for someone to be charged with possession of a firearm.  The reason for this is because of the definition of a “firearm.”  The definition of a “firearm” mandates that the gun is able to fire a projectile. 

Who Determines the “Operational Status” of a Gun? 

This operational status of a firearm is established by the Police Department testing the gun within their gun lab. 

When is a Gun Considered “Loaded?” 

In order for the gun to be considered “loaded” the bullets do not necessarily have to be in the chamber or even in the magazine.  

If the bullets in your possession are: 

• able to be used with gun in your possession; and  
• located in close “proximity” to the gun in your possession… 

That is sufficient for the gun to be considered loaded.  

What Constitutes “Intent” to Use a Weapon Unlawfully Against Another? 

Pretty much any sort of evidence showing that the person was threatening someone with a gun or “menacing” someone with a gun is sufficient to prove the “intent” to use a firearm unlawfully against another. 

If the gun is actually fired at someone, there is very strong evidence that the individual had the requisite “intent” to use the gun against another intentionally. 

What are the Penalties for Criminal Possession of a Firearm? 

Under New York State law, the minimum for criminal possession of a weapon in the second degree is 3–1/2 years of incarceration (assuming that the individual does not have a prior felony record that would enhance the minimum sentence.) Some states, like New Jersey, have much stricter minimums on gun laws because of the Graves Act. 

New Jersey Firearms Charges 

The Graves Act is codified under N.J.S.A. 2C:43-6(c).  This is the primary New Jersey statute for prosecuting the unlawful possession or illegal use of a firearm.  It imposes a “mandatory minimum sentence” for these types of crimes. 

What Is an Example of the Graves Act Being Used? 

The Graves Act provides that an individual cannot serve less than 85% of their sentence for a crime that they plead guilty to.  So, for example, in New Jersey, a gun charge carries a 10-year mandatory minimum; which makes the minimum sentence at least 8-1/2 years (since 8-1/2 years is 85% of 10 years.) 

What Crimes Impose a “Mandatory Minimum Sentence?” 

The Graves Act imposes a mandatory minimum state prison sentence for the: 

• Possession of a defaced firearm; 
• Possession of a sawed-off shotgun; 
• Unlawful possession of a machine gun, hand gun, rifle, or shotgun; 
• Possession of a firearm during the commission of a drug crime; 
• Possession of a firearm by a “prohibited person.” 

What Constitutes a “Prohibited Person?” 

“Prohibited Persons” are individuals who: 

1. Have been convicted of a Felony: People that have been convicted of a felony (and the conviction has not been vacated or pardoned by the governor) are considered to be “prohibited persons.” 
2. Have been convicted of Domestic Violence or Assault Offense: People that have been convicted of domestic violence or assault offense are considered to be “prohibited persons.” 
3. Is Subject to a Domestic Violence Restraining Order: People who are subject to a domestic violence restraining order are also considered “prohibited persons.” 
4. Illegal Aliens: People that are illegal aliens are also considered to be “prohibited persons.” 
5. Dishonorably Discharged: People that have been dishonorably discharged from the military are considered to be “prohibited persons.” 
6. Drug Addiction or Drug User: People that are drug addicts or users are also considered to be “prohibited persons.” 
7. Fugitives from Justice: People that are fugitives from justice are also considered to be prohibited persons. 

What Elements Must the Government Prove in a case of Possession of a Firearm by a “Prohibited Person?” 

First, the government is required to prove “possession” or “receipt” of the firearms or ammunition. 

Second, the government has to establish that the person was a “prohibited person” and that they knew that they were in prohibited status. 

Why Must the Government Prove a Defendant “Knew” of Their Prohibited Status? 

The government must prove that the defendant “knowingly” violated the criminal statute in order to prove the “intent” required for a conviction. 

Federal Firearms Charges 

The most common federal law used in firearms prosecutions is 18 U.S.C §§ 922(g) and 922(n) which is the possession of firearms and ammunition by prohibited persons.  In a federal firearms case, the government must prove is that the ammunition or the gun crossed state lines. 

Why Does the Government Need to Prove the Gun or Ammunition “Crossed State Lines?” 

In order for the federal government to have the jurisdiction needed to prosecute a firearms case, the circumstances and facts of the case must indicate that the gun or ammunition crossed state lines.  Otherwise, if the commission of the crime happened solely within a particular state, the state in which the crime occurred would have the requisite jurisdiction to prosecute the case. 

Successful Representation of Weapons Charges

Our Client was accused of trying to bring a loaded handgun into JFK airport. The Blanch Law Firm was able to have the charges dismissed. Our client was charged with the criminal possession of two unlicensed loaded handguns after they were found in the trunk of their vehicle. If convicted of both charges they could have faced up to 30 years in jail. The Blanch Law Firm was able to secure a Disposition for the client where they would receive no jail time.

Weapons & Firearms Charges Defense

You may be facing a weapons charge as your sole criminal violation, or in addition to other criminal charges. For example, weapons charges can be added onto homicide, assault, and other violent crimes as a way to either increase your jail time or increase the leverage power of the prosecution. Knowing prosecution tactics is a major asset for any successful weapons charge defense.

As a result of spending decades working for District Attorneys’ Offices, our Criminal Defense Attorneys possess a unique knowledge of prosecution tactics, the New York penal code, and federal penal code (including The Brady Bill). The Blanch Law Firm’s criminal defense attorney team will aggressively defend you and employ a team of expert witnesses to investigate your case. Each attorney at our firm has proven courtroom experience, and we make it a priority to stock our firm with impeccable trial lawyers.

Every member of our criminal defense firm had a reputation for a winning trial technique, some of whom even before they left law school. A weapons charge is no laughing matter, and New York law hands down heavy penalties for such violations. Firearms and Gun Laws In New York are detailed and sometimes prosecuted in a prejudicial manner. Our criminal defense attorneys fight to make sure you have a fair trial with a successful outcome.

Contact Our Criminal Defense Firm

If you need a lawyer with experience in federal and state weapons and firearms charges and licensing issues, contact our criminal defense team at The Blanch Law Firm today at 212-736-3900.

Other Weapons & Firearms Offenses We Handle

Carrying a Concealed Weapon
Discharge of Firearm
Illegal Possession of a Firearm
Illegal Use of a Firearm
Weapons Trafficking