New York Criminal Lawyer Blog
Saland Law is proud to share a pro-bono client’s non-criminal disposition after her arrest in Manhattan and subsequent charge of Second Degree Criminal Possession of a Weapon, New York Penal Law 265.03. A legal firearm owner who possessed a conceal carry permit in her home state, our client had inadvertently left her small, but loaded, .22 pistol in her large bag when she drove to New York City for an event honoring a family member’s volunteerism. Unfortunately, when private security scanned the bag upon her entrance into a building frequented by tourists, the search revealed the firearm in her bag and the security officers called the NYPD who placed our client under arrest.
As a New York firearm criminal lawyer who regularly represents clients in gun related arrests, indictments and trials, I know from experience that it is not atypical for individuals visiting New York to either inadvertently take their firearms with them or knowingly bring them to New York because they are unaware of our permitting and licensing laws. In fact, Saland Law frequently represents individuals arrested by the Port Authority at either JFK Airport or LaGuardia Airport after they attempt to lawfully declare and check their broken-down revolver or pistol before checking into their flight. In each and every one of these airport gun cases, either our client travelled with their weapon to other cities and states without issue before or believed they were compliant with the law in New York when they attempted to check their firearm at the airport.
The above said, whether you are unfamiliar with the law at the airport in Queens, thought you could bring your pistol with you on a trip to Manhattan, or you knew you could not legally possess the revolver tucked into your waistband as you walked down a Brooklyn street, the consequence is the same. That is, if convicted of Second Degree Criminal Possession of a Weapon our client faced a mandatory term of 3.5 years in prison and a ceiling of 15 years “upstate”. Without the ability to challenge the stop and search, but having a reasonable argument, albeit a difficult one, that our client did not knowingly possess the weapon in the large bag she grabbed before making the trek to NYC, we believed the best defense was to mitigate our client’s alleged criminal conduct. As such, to avoid any criminal conviction or even a day in prison, we provided evidence to prosecutors and engaged in a proffer with the District Attorney’s Office to demonstrate that our client did not bring the pistol to New York intentionally or to perpetrate a violent act, and that our client was a woman worthy of a drastic downward departure not just from a felony but even from a misdemeanor as well. Thanks to the consideration of prosecutors – from the line assistant to the “Eighth Floor”, aka, the Manhattan District Attorney’s Office executives and bosses, the People ultimately offered our client a non-criminal Disorderly Conduct, Penal Law 240.20. As a result, our client will not have a criminal record, can continue her life and pursuing her livelihood, and support her growing family without the direct or collateral consequences of a criminal conviction.
The Crime: Criminal Possession of a Weapon in the Second Degree
A class “C” violent felony, Penal Law 265.03 makes it a crime to unlawfully possess a loaded firearm outside your home or place of business regardless of whether the firearm would otherwise be lawfully possessed in another jurisdiction. Further, “loaded” under the Penal Law does not require the ammunition to be physically in the chamber or in a clip within the gun, for example. A weapon is legally loaded even if the bullets are within a case where the firearm is stored. If there is no ammunition and the gun is not loaded, the police can still charge Criminal Possession of a Firearm, Penal Law 265.01-b(1), a class “E” non-violent felony.
The Penalty & Potential Sentence: Mandatory Incarceration
All class “C” violent felonies require incarceration even where an accused has no prior criminal history. Though a predicate felon elevates the mandatory minimum, a first-time offender faces 3.5 to 15 years in prison. Where a gun is not loaded and the charged crime is Criminal Possession of a Firearm as referenced above, the penalty does not necessitate incarceration, but that same first-time offender could still face up to 1 1/3 to 4 years in a New York State prison.
To learn more about New York weapon crimes codified in Penal Law Article 265, from misdemeanor possession of switchblades, brass knucks, batons, and other per se weapons to the vastly more serious felonies involving firearms and other guns, review the highlighted links found here or at SalandLaw.Com.
Jeremy Saland is a criminal defense attorney and former Manhattan prosecutor representing clients in gun and weapon related arrests, indictments and trials throughout New York City and elsewhere in the state. Last year, Jeremy secured a mistrial after multiple days of jury deliberation for a client charged with Second Degree Criminal Possession of a Weapon where the client’s DNA was allegedly found on the trigger and elsewhere.