Articles Posted in Weapon Possession

Despite a criminal defense attorney’s best efforts, a Brooklyn State Supreme Court Justice ruled in a decision published yesterday that the United States Supreme Court’s decision in the District of Columbia v. Heller does not prevent New York State from regulating guns, pistols and firearms within its boundaries.

Defendant, Albi Abdullah, was arrested and charged with Criminal Possession of a Weapon in the Fourth Degree pursuant to Penal Law 265.01(1). The defendant had been arrested after police found him violation of an order of protection. When asked whether he had any weapons, the defendant admitted that he had a gun in a kitchen cabinet. The police then located an unloaded .25 caliber handgun.

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According to the media, New York Giants All Pro wide receiver Plaxico Burress is turning himself in to the New York City Police Department for shooting himself in the leg this past weekend in Manhattan. As of now, it appears that he will be charged with Criminal Possession of a Weapon, a class “C” felony, punishable by a minimum of 3.5 years in state prison to a maximum of 15 years.

Unfortunately for Mr.Burress, the criminal law and consequences have changed significantly in recent years. The “old” law required that prosecutors prove not only that you possessed a loaded firearm (handgun, pistol, etc.), but that you had the intent to use it unlawfully against another. Now, the mere possession of a loaded firearm outside your home or place of business constitutes the same level crime. That is, possession alone is a “C” felony and the prosecution does not have to prove in any way that you, or in this case Plaxico Burress, intended to use that gun unlawfully against another person. Only 2-3 years ago, under the same set of facts, Mr. Burress would likely have been charged “only” with a “D” felony punishable by a minimum of 2 years in state prison and a maximum of seven years if the prosecution could not establish that the gun was possessed with the intent to use it unlawfully.

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Criminal Possession of a Weapon in the Third Degree, a “D” Felony punishable by up to seven years, can be established by merely proving a defendant possessed an assault weapon, a disguised gun, or twenty or more firearms. However, experienced New York criminal defense attorneys know that prosecutors have another tool in the criminal law that enables them to “elevate” weapon charges from misdemeanors to felonies.

Pursuant to Criminal Possession of a Weapon in the Third Degree, Penal Law 265.02(1), a person is guilty of this crime when he commits the crime of Criminal Possession of a Weapon in the Fourth Degree, Penal Law 265.01(1),(2),(3) or (5) and has previously been convicted of any crime. That’s right…any crime regardless of how long ago it was. So, for example, if you were previously convicted of possessing a switchblade 15 years ago and you were arrested for possessing a switchblade again, the prosecution would have the ability to present your case to the Grand Jury as a felony.

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You are carrying .22 caliber bullets in Manhattan or .38 caliber rounds in Brooklyn, but you don’t have a permit to possess a handgun or pistol that utilizes the ammunition or to possess any firearm at all. Well, you may not have violated New York State Penal Law for Criminal Possession of a Weapon, but you are in violation of the New York City Administrative Code.

According to Administrative Code Section 10-131(i)(3) it is unlawful for any person not authorized to possesses a pistol or revolver within the city of New York to possesses pistol or revolver ammunition. Similarly, pursuant to Administrative Code Section 10-131(i)(4) it is unlawful for any person to authorized to possess a pistol or revolver of a particular caliber within the city of New York to possess pistol or revolver ammunition of a different caliber. Both of these Administrative Code violations are punishable as misdemeanors.

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