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Weapon and Firearm Charges

Firearm charges in New York can include the criminal possession of a weapon or firearm, the unlawful possession of a weapon or firearm, the criminal use of a firearm, or the criminal sale of a firearm. The possible penalties and punishments for each of these charges vary depending on the circumstances and the way the offense is charged.

Nassau County Weapons Charges Lawyer

If you were charged with any firearm or weapon charge in Nassau County, then contact an experienced criminal defense attorney at the Law Office of Stephanie Selloni. The laws in New York impose serious penalties and punishments for any crime involving the possession, use or sale of a firearm or other type of deadly weapon.

 At Law Office of Stephanie Selloni we represent clients facing criminal charges in Hempstead, Floral Park, Garden City, Glen Cove, and the surrounding areas of Nassau County. Call us at 516-972-1212 to discuss the particular facts and circumstances of your case. </p>

 


Information on Gun and Weapon Charges


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Definitions for Weapon and Firearm Crimes

The term "firearm" is defined as any pistol or revolver. Under these statutes, the firearm need not be loaded but it must be operable. To be operable, a firearm must be capable of discharging ammunition. Although the firearm must be operable, there is no requirement that the possessor knows the firearm was operable.

The definition of "possess" is to have physical possession or otherwise to exercise dominion or control over tangible property.

"Knowingly" means possesses a firearm when that person is aware that he or she is in possession of such firearm.

The term "rifle" means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade, to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger.

A "shotgun" is defined as a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade, to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.

An antique firearm is any unloaded muzzle loading pistol or revolver with a matchlock, flintlock, percussion cap, or similar type of ignition system, or a pistol or revolver which uses fixed cartridges which are no longer available in the ordinary channels of commercial trade.


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Criminal Possession of a Firearm

Criminal possession of a firearm in the Fourth Degree can be charged in eight (8) different ways under New York law. Each charge under Penal Law 265.01 is a class A misdemeanor.

Under Penal Law Section 265.01(1), Possession of Firearm is when that person knowingly possesses any firearm that was operable. Also, under this subsection, the Possession of Per Se Weapons other than Firearms is when that person knowingly possesses any: 

  • electronic dart gun;
  • electronic stun gun;
  • gravity knife;
  • switchblade knife;
  • pilum ballistic knife;
  • metal knuckle knife;
  • cane sword;
  • billy;
  • blackjack;
  • bludgeon;
  • plastic knuckles;
  • metal knuckles;
  • chuka stick;
  • sand bag;
  • sandclub;
  • wrist-brace type slingshot or slungshot;
  • shirken; or
  • Kung Fu star.

Under Penal Law Section 265.01(4), Possession of Rifle or Shotgun (Previous Conviction) is when a person has been convicted of a felony or serious offense and that person knowingly possess one of the following items:

  • a rifle;
  • a shotgun;
  • an antique firearm;
  • a black powder rifle;
  • a black powder shotgun; or 
  • any muzzle-loading firearm.

The definition of a "serious offense" is contained in Penal Law § 265.00(17), and includes the following types of crimes: 

  • illegally using, carrying or possessing a pistol or other dangerous weapon;
  • making or possessing burglar's instruments;
  • buying or receiving stolen property;
  • criminal possession of stolen property in the third degree;
  • unlawful entry of a building;
  • jostling;
  • fraudulent accosting; 
  • issuing abortion articles; 
  • permitting prostitution; 
  • promoting prostitution in the third degree;
  • stalking in the fourth degree; 
  • stalking in the third degree;
  • endangering the welfare of a child; 
  • escape in the third degree; 
  • aiding escape from prison; 
  • that kind of criminal sexual act or rape which was designated as a misdemeanor; 
  • any violation of any provision of article 33 of the public health law relating to narcotic drugs which were defined as a misdemeanor by section 1,751(a) of such former penal law, and
  • any violation of any provision of article 33(a) of the public health law relating to depressant and stimulant drugs which were defined as a misdemeanor by section 1,747(b) of such former penal law.

Possession of Rifle or Shotgun by Person Certified Not Suitable

Under Penal Law Section 265.01(6), a person can be charged with Criminal Possession of a Weapon in the Fourth Degree when it is alleged that he or she is a person who has been certified not suitable to possess a rifle or shotgun, and refuses to yield possession of such rifle or shotgun upon the demand of a police officer.

The term “CERTIFIED NOT SUITABLE TO POSSESS A RIFLE OR SHOTGUN” means that the director or physician in charge of any hospital or institution for mental illness, public or private, has certified to the superintendent of state police or to any organized police department of a county, city, town or village of this state, that a person who has been judicially adjudicated incompetent, or who has been confined to such institution for mental illness pursuant to judicial authority, is not suitable to possess a rifle or shotgun. See Penal Law § 265.00(16).

Possession of Explosive Bullet

Under Penal Law Section 265.01(7), the charge of Possession of Explosive Bullet is when that person knowingly possesses a bullet containing an explosive substance1 designed to detonate upon impact.

Possession of Armor Piercing Ammunition

Under Penal Law Section 265.01(8), the charge of Possession of Armor Piercing Ammunition is when that person knowingly possesses any armor piercing ammunition with intent to use the same unlawfully against another.

Criminal Possession of a Weapon on School Grounds

Under Penal Law Section 265.01-a (formerly 265.01(3)), a person can be charged with Criminal Possession of a Weapon on School Grounds, a class E felony, when it is alleged that person knowingly has in his or her possession in or upon a building or grounds, used for educational purposes, of any school, college or university, except the forestry lands, wherever located, owned and maintained by the State University of New York college of environmental science and forestry, or upon a school bus, without the written authorization of such educational institution any one of the following weapons:

  • a rifle;
  • a shotgun; or
  • a firearm. 

Criminal Possession of a Firearm

Under Penal Law Section 265.01-b(1), a person can be charged with Criminal Possession of a Firearm, a class E felony, when it is alleged that the person knowingly possessed any firearm.

Failure to Register Firearm

Under Penal Law Section 265.01-b(2), as of April 15, 2013, a person can be charged with Criminal Possession of a Firearm, a class E felony, when it is alleged that the person knowingly and lawfully possessed a firearm that became subject to the registration requirements of the law and knowingly fails to register such firearm pursuant to such law.


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Criminal Possession of a Weapon in the Third Degree

265.02(1): Possession of Weapon; Previous Conviction

Criminal possession of a weapon in the third degree is a class D felony under Penal Law Section 265.02(1). This charge elevates the crime of fourth-degree weapon possession under Penal Law § 265.01(1), (2), (3), or (5) to a felony when the defendant "has previously been convicted of any crime."

265.02(2): Possession of Bomb, Silencer, Etc

Criminal possession of a weapon (bomb, silencer, etc.) in the third degree is a class D felony under Penal Law Section 265.02(2). A person can be charged with Criminal Possession of a Weapon in the Third Degree when it is alleged that the person knowingly possesses any of the following: 

  • an explosive or incendiary bomb;
  • a bombshell;
  • a firearm silencer; or
  • any firearm or weapon simulating a machine-gun and which is adaptable for such use.

265.02(3): Possession of Defaced Weapon

Criminal Possession of a Weapon in the Third Degree, is a class D felony, Penal Law Section 265.02(3). It can be charged if a person knowingly possesses a firearm, rifle, or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such firearm, rifle, or shotgun.

265.02(5)(i): Possession of Three or More Firearms

Criminal Possession of a Weapon in the Third Degree is a class D felony under Penal Law Section 265.02(5)(i). This charge alleges that a person knowingly possesses three (3) or more firearms.

265.02(5)(ii): Possession of Firearm; Prior Conviction

Criminal Possession of a Weapon in the Third Degree is a class D felony under Penal Law Section 265.02(5)(ii), It alleges that a person, who has been previously convicted of a felony or a class A misdemeanor, namely, within the five years immediately preceding the commission of the offense, knowingly possesses a firearm and such possession does not take place in the person's home or place of business.

265.02(6): Possession of Disguised Gun

Criminal Possession of a Weapon in the Third Degree is a class D felony under Penal Law 265.02(6). It alleges that a person knowingly possesses any disguised gun.

The term “DISGUISED GUN” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive and is designed and intended to appear to be something other than a gun.

265.02(7): Possession of Assault Weapon

Criminal Possession of a Weapon in the Third Degree is a class D felony under Penal Law 265.02(7) when it is alleged that the person knowingly possesses an assault weapon.

The term “assault weapon" means 

(a) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least two of the following characteristics:

    • a folding or telescoping stock;
    • a pistol grip that protrudes conspicuously beneath the action of the weapon;
    • a bayonet mount;
    • a flash suppressor or threaded barrel designed to accommodate a flash suppressor;
    • a grenade launcher; or

(b) a semiautomatic shotgun that has at least two of the following characteristics:

    • a folding or telescoping stock;
    • a pistol grip that protrudes conspicuously beneath the action of the weapon;
    • a fixed magazine capacity in excess of five rounds; (iv) an ability to accept a detachable magazine; or

(c) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least two of the following characteristics:

    • an ammunition magazine that attaches to the pistol outside of the pistol grip;
    • a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;
    • a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non-trigger hand without being burned;
    • a manufactured weight of fifty ounces or more when the pistol is unloaded;
    • a semiautomatic version of an automatic rifle, shotgun or firearm; or

(d) any of the weapons, or functioning frames or receivers of such weapons, or copies or duplicates of such weapons, in any caliber, known as:

    • Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models);
    • Action Arms Israeli Military Industries UZI and Galil;
    • Beretta Ar70 (SC-70);
    • Colt AR-15;
    • Fabrique National FN/FAL, FN/LAR, and FNC; (vi) SW D M-10, M-11, M-11/9, and M-12;
    • Steyr AUG; or
    • INTRATEC TEC-9, TEC-DC9 and TEC-22; and (ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12.

The law does not include a rifle shotgun or pistol that is manually operated by a bolt, pump, lever or slide action, that has been rendered inoperable or is an antique firearm under federal law.


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Criminal Possession of a Weapon in the Second Degree 

265.03(1)(a): Machine-Gun With Intent To Use Unlawfully

Criminal Possession of a Weapon in the Second Degree is a class C felony under Penal Law Section  265.03(1)(a) and (1)(c). It occurs when, with intent to use the same unlawfully against another, that person knowingly possesses a machine-gun or disguised gun.

The term “MACHINE-GUN” means a weapon of any description, irrespective of size, by whatever name known, loaded or unloaded, from which a number of shots or bullets may be rapidly or automatically discharged from a magazine with one continuous pull of the trigger and includes a sub-machine gun. 

The term “DISGUISED GUN” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive and is designed and intended to appear to be something other than a gun.

265.03(1)(b): Loaded Firearm With Intent To Use Unlawfully

A person commits Criminal Possession of a Weapon in the Second Degree when, with intent to use the same unlawfully against another, that person knowingly possesses a loaded firearm.

265.03(1)(c): Disguised Gun With Intent To Use Unlawfully

A person is guilty of Criminal Possession of a Weapon in the Second Degree when, with intent to use the same unlawfully against another, that person knowingly possesses a machine-gun or disguised gun.

265.03(2): 5 or More Firearms

Criminal Possession of a Weapon in the Second Degree is a class C felony under Penal Law Section Under our law, a person is guilty of Criminal Possession of a Weapon in the Second Degree when that person knowingly1 possesses five (5) or more firearms.

265.03(3): Possession of Loaded Pistol or Revolver, Not in Home or Place of Business

Under Penal Law Section 265.03(3), a person is guilty of Criminal Possession of a Weapon in the Second Degree, a class C felony, when that person knowingly possesses any loaded firearm. Such possession shall not constitute a violation of this law if such possession takes place in such person's home or place of business.


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Possession of a Weapon in the First Degree

Possession of a weapon in the first degree is a class B felony which can be committed in one of two ways. 

265.04(1): Possession of Explosive with Intent To Use Unlawfully

Under Penal Law Section 265.04(1)1, a person is guilty of Criminal Possession of a Dangerous Weapon in the First Degree when that person knowingly possesses any explosive substance with intent to use the same unlawfully against the person or property of another

265.04(2): 10 or More Firearms

Under Penal Law Section 265.04(2), Criminal Possession of a Weapon in the First Degree is when that person knowingly possesses ten (10) or more firearms.


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Criminal Use of a Firearm in the Second Degree  

265.08(1): Class C Felony and Possession of Deadly Weapon

Criminal Use of a Firearm in the Second Degree is a class C felony. Under Penal Law Section 265.08(1), a person is guilty of Criminal Use of a Firearm in the Second Degree when that person commits any Class C violent felony offense and he or she knowingly possesses a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious physical injury may be discharged.

265.08(2): Class C Felony and Display of a Weapon

Under Penal Law Section 265.08(2), a person is Guilty of Criminal Use of a Firearm in the Second Degree when he commits any Class C violent felony offense and he or she displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

The element that the person displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm does not require the prosecutor to prove that the object displayed was actually a firearm. Instead, the prosecutor is required to prove is that the person consciously displayed, or manifested the presence of, something that could reasonably be perceived as a pistol, revolver, rifle, shotgun, machine gun or other firearm and that the person, to whom the item was displayed or manifested, perceived it as a pistol, revolver, rifle, shotgun, machine gun or other firearm.


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Criminal Use of a Firearm in the First Degree

265.09(1)(a): Class B Felony With Possession of Deadly Weapon

Under Penal Law Section 265.09(1)(a), a person is guilty of Criminal Use of a Firearm in the First Degree when that person commits any Class B violent felony offense and he or she knowingly possesses a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious physical injury may be discharged.

265.09(1)(b): Class B Felony With Display of a Weapon

Under Penal Law Section 265.09(1)(b), a person is Guilty of Criminal Use of a Firearm in the First Degree when he commits any Class B violent felony offense and he or she displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

Although it is an element of the offense that the person displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, the charge does not require the prosecutor to prove that the object displayed was actually a firearm. 

Instead, the prosecutor is required to prove that the person consciously displayed, or manifested the presence of, something that could reasonably be perceived as a pistol, revolver, rifle, shotgun, machine gun or other firearm and that the person, to whom the item was displayed or manifested, perceived it as a pistol, revolver, rifle, shotgun, machine gun or other firearm.


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Finding an Attorney for Firearm or Weapon Charges Nassau County

Charges involving a firearm or other type of deadly weapon are treated very seriously in New York. The Nassau County District Attorney's Office, in particular, prides itself on taking such an aggressive stance in the prosecution of these types of cases.

If you are facing weapons charges in and around Garden City, Mineola, Hempstead, Westbury, or Glen Cove, call our office at 516-972-1212 to discuss the case. We provide our clients with an aggressive defense. We understand the ways these cases are prosecuted and the right way to present defenses through filing and litigating viable motions to suppress or dismiss the charges.