Usually, one of the first questions clients ask me in my capacity as a criminal defense lawyer after they have been arrested by the NYPD or Port Authority Police for possessing a loaded firearm is, “What is the penalty is for carrying a gun in New York City?” and “How long do you go to jail for having a gun in New York even if you have a conceal carry permit in [Texas, Florida, North Carolina, Connecticut, Virginia…]?”. While a conviction for Criminal Possession of a Weapon in the Second Degree, Penal Law 265.03, can saddle you with a sentence for as long as 15 years in prison, with a compulsory minimum of three and a half years if the firearm is “loaded” (bullets needn’t be in the weapon for it to be “loaded” as a matter of law”), a judge can hand down punishment of up to four years behind bars for Criminal Possession of a Firearm, Penal Law 265.01-b(1), even when there is no ammunition at all.
With this type of exposure in mind, Saland Law is incredibly grateful, though not as much as our client after her arrest for Penal Law 265.03, prosecutors took the time to truly review what I presented, examine our client’s case, and advance the matter for dismissal in the interest of justice. While a non-criminal Disorderly Conduct violation or Adjournment in Contemplation (ACD) of dismissal after six months would have been considered a “win” assuming there was no legal impediment to the case, such as in cases I have handled in Queens County where unknowing travelers checked their firearms with the TSA at either JFK or LaGuardia Airport, and downward departures and re-pleaders to non-criminal pleas in other counties such as Manhattan and elsewhere, Brooklyn prosecutors went the extra mile to make an objectively just decision on a case that appeared ugly if one did not do one’s “homework”.
What started off as a 911 call that my client had a gun and was threatening to harm her friend, ended with my client being handcuffed and charged with Second Degree Criminal Possession of a weapon after she walked out of her friend’s apartment with her gun in hand in order to give it to the police and deescalate the situation. A non-New York resident who was unaware of New York’s firearm laws, upon voluntarily advising the police that she had a firearm and gave it to them, the NYPD immediately arrested our client for Second Degree Criminal Possession of a Weapon for unlawfully possessing the loaded pistol outside her home or place of business. Not only frustrating because our client had never threatened anyone and the police came because the delusional drug induced claims of the friend, if our client had waited for the police to arrive inside the apartment, the offense charged would have been the lesser class “E” felony of Criminal Possession of a Firearm.
Nonetheless, upon speaking to a witness as well as counsel for the “complainant” friend who initially made the call regarding my client’s purported threats, and sharing the actual facts with the assigned prosecutor that my client never brandished nor made threats with a firearm towards the manic “complainant” who only knew of the gun but never saw it, providing corroboration of our client’s honorable military service, current career, and otherwise generous, kind, moral, and genuinely “good” life, and sharing proof of the weapon’s legal registration and ownership, prosecutors took the package we presented to heart and confirmed it in its entirety.
Though it may sound fairly simple in a few hundred-word blog entry, collecting the information and crafting it a manner prosecutors could both digest and relate, while moving them away from both a felony and misdemeanor, is no easy task…especially in the current climate of gun violence. However, and again to the credit of the Assistant District Attorney and his supervisor, prosecutors examined this case not as a larger piece of the fight against illegal, disguised, and ghost guns, or as a greater part of the fight against gun crime, but on the merits of what I presented and what the evidence demonstrated. Simply, just because they could have slammed our client with a criminal record by the mere fact she had an out-of-state and unlawfully possessed firearm in NYC, did not mean that they should.
With the dismissal in hand, the case closed, and a life restored, as well as her lawful Second Amendment rights intact, our client’s relief was palpable. A young lawyer, our client can now pursue her legal career and continue on a trajectory that already included incredible service to our nation, an unblemished record in any forum, and accomplishments that would make any one of us proud. Fortunately, a genuine, even if frightening, mistake, made far worse due to a friend’s intoxication and false reporting of an incident, will not saddle our client with any infirmities, unnecessary burdens, nor conviction “Scarlett Letter” for the rest of her life.
Jeremy Saland is a criminal defense attorney and former Manhattan prosecutor. Jeremy Saland and Saland Law, PC represents clients in arrests, criminal investigations, indictments, and trials. Additionally, Saland Law, PC assists clients in securing Orders of Protection as petitioners and as respondents in Article 8 Family Offense proceedings, as advocates in collegiate Title IX and Code of Conduct matters, and as victims in Blackmail, Sextortion, Harassment, Revenge Porn, and Stalking both online and off.