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What is Criminal Possession of a Firearm in New York?

by | Aug 22, 2022

Criminal possession of a firearm in New York is a serious crime. While this offense was once charged as a misdemeanor, as of March 2013, it can be charged as a class “E” felony. If you are arrested for unlawfully possessing an unregistered firearm, a conviction can come with life-changing consequences — personally, professionally, and economically. Significantly, since criminal possession of a firearm is a strict liability offense, the prosecution does not need to prove any intent, but only that you unlawfully possessed a pistol, revolver, or other firearm.

What Constitutes Criminal Possession of a Firearm?

New York’s gun laws are some of the toughest in the country — and they are extremely complex. Under New York Penal Code 265.01-b, a person can be found guilty of criminal possession of a firearm if (1) they possess any firearm or (2) they lawfully possess a firearm and fail to register it. For the purposes of the statute, New York law defines a firearm as any of the following:

  • A pistol or revolver
  • A shotgun with one or more barrels less than 16 inches in length
  • A rifle with one or more barrels less than 16 inches in length
  • Any weapon that is made from a shotgun or rifle less than 26 inches
  • An assault weapon

Any other weapon with a component that provides housing to hold a fire control component designed to expel a projectile by the action of explosive also constitutes a firearm. Notably, antique firearms are not included in the definition of firearm set forth under the Penal Law. While firearms that are properly registered are exempt from the law, it’s important to note that New York City has its own gun licensing requirements in addition to complying with New York State’s requirements.   

What is the Sentence for a Criminal Possession of a Firearm Conviction?

Since criminal possession of a firearm is a class “E” felony, the maximum jail sentence that can be imposed for a conviction is four years. A conviction can also come with a probation term of five years and a monetary fine of up to $5,000.

While class “E” is the lowest level felony in New York, the law allows for an “alternative definite sentence” for first-time offenders. In such cases, the court has the discretion to impose a jail term of one year or less after considering the nature of the crime and the circumstances surrounding it — as well as the defendant’s history and character. However, due to the seriousness of crimes involving weapons, an alternative definite sentence is rare in firearms cases.

Defending Against Criminal Possession of a Firearm Charges

There are several common defenses that may be raised in cases involving criminal possession of a firearm charge. For instance, if the police found the firearm during a search of your vehicle or home, a criminal defense attorney might be able to challenge the lawfulness of the search. If the firearm was discovered as a result of an illegal search and seizure, it would be deemed inadmissible evidence — and the charges would likely be dropped.       

Other possible defenses can include arguing that the defendant was not in actual possession of the firearm, or asserting that the firearm in question was not operable. It’s vital to have the representation of a skilled criminal defense attorney who can evaluate the specific facts of your case and craft a solid defense strategy based on the circumstances.

Contact an Experienced New York Criminal Defense Attorney

If you’ve been charged with criminal possession of a firearm or another weapons-related offense, it’s crucial to have a knowledgeable criminal defense attorney on your side to protect your rights. The skilled criminal defense attorneys at D’Emilia Law provide high-quality representation and adept advocacy to those who have been arrested for firearms crimes and strive to obtain the best possible results in their cases. To schedule a consultation, contact us at 1-888-DEMILIA.  

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