Facing Criminal Possession of a Weapon 2nd Degree Charges in New York?

Given the recent uptick in New York as it pertains to gun possession and gun violence, district attorney offices throughout the city have taken a firm stance when it comes to prosecuting these cases. When it comes to loaded firearms, prosecutors have found creative ways to charge intent to use and possession outside one’s home or place of business.

Criminal Possession of a Weapon in the Second Degree

One of the most common gun charges, if not the most common, is criminal possession of a weapon in the second degree (New York Penal Law 265.03).

• By definition, a person can and will be charged with Criminal Possession in the Second Degree if that person possesses a loaded gun with intent to use the gun unlawfully against another person.

It is a common misconception that the government must prove at trial that the individual actually intended to use the firearm against another (ie, a shooting). Rather, in New York, merely possessing a firearm allows the jury to infer and conclude, even absent other evidence, that the person intended to use it unlawfully. The government does not need to bring additional proof beyond the possession of the firearm itself.

• Second, regardless of intent, a person is guilty of Criminal Possession of a Weapon in the Second Degree if he possesses a loaded gun outside of their home or place of business without an applicable permit.

Hence, even if a person has a license to carry a firearm in any or every other state, if that person is found with a firearm in New York, and that gun is loaded, and the person is not in their home or at work, they are guilty of violating this statute.

There are also common misconceptions as to what is considered a “loaded” firearm in New York. In New York, a gun is considered loaded, even if there are no bullets in the gun, if the gun and bullets are both within close proximity to the person, such that the person has quick and easy access to them. In this realm, an individual is considered to be in possession of a loaded firearm outside of his home or place of work, and can be charged under this statute.

Examples and Recent Cases

Our firm is well-equipped and experienced when it comes to criminal possession of a weapon charges.

Recently, Jason Goldman represented an individual at trial who was charged with criminal possession of a weapon in the second degree and other related charges. In this case, an anonymous 911 caller had relayed that an individual matching our client’s description was holding a firearm in the street. When the police arrived, they observed our client empty handed but later found a firearm within the immediate vicinity.

While our client did not have the firearm on him at the time the police arrived, one officer testified at trial and claimed to have observed our client toss the firearm upon arrival. This officer was impeached and discredited at trial and the jury ultimately found our client not guilty despite the presence of a gun nearby and despite the officer’s testimony. We were able to successfully push back and also highlighted the lack of DNA and lack of fingerprints on the gun itself.

Penalties and Sentencing

Criminal Possession of a Weapon in the Second Degree is a class C felony. The statutory minimum required sentence for this offense is 3.5 years in prison and the maximum is 15 years. However, those numbers only apply to an individual who does not have prior felonies within the last ten years. If the person has a criminal history, the sentencing range can increase drastically. 

Unfortunately, probation is not an option should you be convicted of criminal possession of a weapon in the second degree. With the right defense, your lawyer should aggressively seek to have this charge reduced to a lesser-included offense such as criminal possession of a firearm, a class-E felony which does allow for a probationary sentence.

Your Defense Begins Today

If you are charged with weapons possession in the 2nd degree, it is important that you have a former prosecutor and criminal defense attorney who has experience in handling these cases on both sides of the aisle. Please contact The Law Offices of Jason Goldman today if you are being charged with an “intent to use” or “outside the home or place of business” second-degree weapons possession.