Illegal Gun Possession in New York City
The Second Amendment gives you the right to bear arms but, regardless of your politics, no reasonable person thinks this extends to weapons of mass destruction. This means that most reasonable people agree on some level of control. Exactly what you can possess, where, and when differs greatly throughout the country. If you have a pistol in New York City, there are two possibilities. Your possession is legal or illegal. If legal, you would have obtained a permit from the New York City Police Department's License Division. This permit is limited to a premise license, carry business license, limited carry business license, special carry license, or carry guard license. The premise license is restricted to a residence or business. The carry and limited carry business license allows the holder to carry a concealed handgun but it is valid for business use. The special carry license and carry guard license also have strict limitations. There is no general unrestricted permit for possessing a pistol in New York City.
Illegal gun possession can be charged in many different circumstances depending on where the gun is possessed, whether it is loaded, and whether it is being used unlawfully against someone else. One of the most common charges I've seen as a New York City Criminal Defense Attorney is Criminal Possession of a weapon in the Second Degree, P.L. 265.03. It reads: A person is guilty of (this offense) when.... such person possesses any loaded firearm. There is an exception to 265.03 for possession occurring in the home or place of business. If convicted and even if it's your first arrest, you face a MINIMUM of 3 1/2 years and a maximum of 15 years in state prison.
In 2006, Governor Pataki and Mayor Bloomberg succeeded in making changes to existing criminal laws targeting gun possession. Criminal Possession of a Weapon in the Second Degree was elevated to a class C violent felony from a class D violent felony. So, if you were caught with an unlicensed loaded gun, you could be charged with a C violent felony even if there was no intent to use it unlawfully. Multiple unlicensed unloaded guns could also trigger this harsher law. The goal was to target gang members using guns to protect and claim territory and other hardened criminals.
Possession in the second degree is given a violent designation and requires a minimum state prison term. This is significant because the prosecutor only needs to establish mere possession, not that any violence resulted, and you could be off to prison for up to 15 years. The old law also required state prison time but 2 years instead of 3 1/2. http://www.lawfletcher.com/Criminal-Defense/Firearm-Possession.aspx
As an experienced New York City Criminal Defense Lawyer, I've seen clients charged with Criminal Possession of a Weapon in the Second Degree for having a loaded pistol in a glove compartment of their car. In some of these cases, my client had a valid permit from another state and incorrectly thought this meant their out of state permit would be valid in New York. This works with certain licenses, such as driver's licenses, but not with pistol permits. I've also seen people criminally charged when voluntarily declaring their weapon at a NYC airport. One of the most unfortunate conversations that I must have with a client facing these criminal charges is that, despite their out of state permit and the fact that they are gainfully employed often with careers and families, they are facing a mandatory minimum sentence of 3 1/2 years in state prison if convicted.
The unique history and circumstances of New York City plays into the politics that have set the stage for this very harsh law. Certainly, a pistol being fired in the crowded New York City metropolitan area creates a substantial risk to everyone. I have seen countless crime scene photos of the destruction that bullets (some of which travel at 4,000 feet per second) can cause. Still, gun rights are a very different thing in the southern US and New York's strict laws often catch visitors by surprise. Law-abiding people from gun-happy states who are legitimately employed, have a permit in their home state, and caught by surprise don't belong in state prison. The inconsistent view of guns throughout the country is partially to blame. We often hear that gun laws should be regulated by the states but the result can create a patchwork of 50 different laws with harsh outcomes for those who are caught by surprise. We need a more uniform approach.
By Lance Fletcher, NYC Criminal Defense Attorney
www.LawFletcher.com
