Having both prosecuted individuals as a Manhattan Assistant District Attorney and defended clients arrested and charged with Penal Law 265.03, Criminal Possession of a Weapon in the Second Degree, as a New York gun possession lawyer, I have learned over the past 22 years that New York’s firearm laws can be unforgiving. For the uninformed, which there are many, the New York Penal Law does not differentiate between unlawfully possessing a loaded firearm – pistols, glocks, revolvers – outside your home or place of business that you illegally bought on the street or stole, from one otherwise lawfully possessed out of state but carried on your person in New York without the requisite license or permit here. Simply, even if there are other potential charges, in the eyes of New York law, there is no difference between holstering that back alley loaded gun in your waistband and walking around Brooklyn and declaring that same .9 mm to an airline representative or TSA agent, along with your out-of-state permit, before flying out of Queens’ JFK or LaGuardia Airport believing you are following proper protocols. Taken a step further, whether there is a bullet chambered in either scenario or the ammunition is in a case but not in the actual gun, the weapon may nonetheless be considered loaded.
With the above background in mind, Saland Law is pleased to share two separate results for clients arrested for Second Degree Criminal Possession of a Weapon, aka, CPW 4, in Manhattan.
Setting aside what constitutional arguments a criminal defense attorney could make in light of Bruen, which may or may not be meritorious assuming an individual even wants to pursue such a defense if he or she can avail themselves of a non-criminal disposition, and one’s view on the Second Amendment, Saland Law’s two clients, both licensed out-of-state, found themselves charged with Penal Law 265.03. Facing a mandatory 3.5 to 15 years incarceration if convicted, both clients avoided anything close to such a disastrous outcome. Below is a brief synopsis of each case:
CLIENT ONE: GUN IN BAG SETS OFF METAL DETECTOR AT NIGHT CLUB
Alleged Incident
Our client, a registered and lawful firearm owner in a neighboring state, visited Manhattan with a friend. Carrying his gun, as he does regularly, our client placed it in his bag before entering a club. Upon going through security, metal detectors warned the employees of the pistol’s presence. Completely unaware of the law and that he was committing any crime, the police arrested our client for this class “C” violent felony.
Outcome
Our client received a Disorderly Conduct. A violation and not a crime, our client’s record remains free of any criminal conviction. No incarceration, no probation, no community service, and no fines.
CLIENT TWO: TWO GUNS IN VEHICLE
Alleged Incident
Our client, a registered and lawful firearm owner in southern state, was visiting NYC. Unfortunately, someone broke into her vehicle. Calling the police to report the crime, our client, without being prompted, informed the NYPD that she had two loaded guns and gave them the same. Unaware of New York’s strict laws and believing she was doing the right thing by notifying law enforcement, our client found herself under arrest and charged with multiple counts of Penal Law 265.03.
Outcome
Prosecutors offered our client a plea that would ultimately result in dismissal after three months of no arrests. As such, she would have no criminal record upon vacating her plea. Like the client above, our client was not incarcerated, sentenced to probation, or required to complete community service or to pay any fine. Most importantly, her record remained clean.
Changing Landscape: Strict Laws and New Offenses Around the Corner
The fallout from Bruen is still yet to be seen, but challenges to the law continue as the Court of Appeals prepares to hear arguments on the lawfulness of New York’s statutes. In the meantime, Second Degree Criminal Possession of a Weapon, and its mandatory 3.5 year incarceratory sentence, remains in full effect while at the same time Governor Hochul signs new bills into law. In fact, starting September 1, 2022, Penal Law sections 265.01-e, Criminal Possession of a Firearm, Rifle or Shotgun in a Sensitive Location and 265.01-d, Criminal Possession of a Weapon in a Restricted Location, make it a class “E” felony, punishable by as much as four years in prison, to possess these guns in a location where you know, or should reasonably know, you are not permitted to do so.
Whether you are licensed in New York, out of state, or not at all, recognize that even though the landscape is changing in terms of conceal carry permits, there are ample laws that remain in full force with significant penalties as well as those that are taking effect in the days to come. To learn more about these laws, visit Saland Law’s New York Weapon Possession page and consider this simple piece of unsolicited advice: if you do not have a permit to carry your legal firearm in New York City or anywhere in the state, as much as New Yorkers will welcome you with open arms, it would behoove you to simply leave your gun at home or wherever it is lawfully allowed. Ultimately exonerated or not, nobody wants to see the inside of a jail cell.