Facing Criminal Possession of a Firearm Charges in New York? - New York Penal Law 265.01-b

Due to the recent uptick in firearm and weapons possession in New York, the state’s legislature has enacted several laws to curtail these crimes. One of the caveats is known as CPF, or Criminal Possession of a Firearm, Penal Law section 265.01-b. 

Criminal Possession of a Firearm is an E-felony in New York, making it an enhanced version of criminal possession of a weapon in the fourth degree, which is only a class-A misdemeanor.

Now if an individual is in possession of a firearm, even an unloaded one, it is up to the discretion of the prosecutor to charge one or both of these charges.

When an Unloaded Gun is Determined to be Loaded

A common misconception in New York is that a firearm needs to actually be loaded, with ammunition inside of it, to be considered a loaded firearm. This is inaccurate.

Rather, possession of a weapon and ammunition within the vicinity of that weapon (ie, ammunition in a desk drawer while a firearm is under a bed) will be charged as a criminal possession of a weapon in the second degree, a class-C felony. 

To be charged out only as a CPF, the firearm itself must be unloaded in the context of New York laws – that is, there must not be any ammunition within the same physical proximity as the firearm recovered.

Additionally, while possession of an unloaded gun generally seems to be a less serious charge than a loaded gun, the law’s definition of “loaded” is not quite what you would expect. In New York, a gun does not have to actually have ammunition inside of it to be considered “loaded.” If you possess an unloaded gun and you also possess ammunition for that gun, the gun is considered to be loaded.

Although Criminal Possession of a Weapon in the Second Degree, New York Penal Law § 265.03, only allows an individual to be charged with the possession of a loaded gun, if such possession is outside of the home or place of business (or if the possession is with the intent to use unlawfully against another), there is a caveat. If an individual has a criminal record they are essentially exempt from this exception – meaning, prosecutors can charge them for possession in the home or place of business.

The Rise of Ghost Guns

Legislation was also enacted in 2022 that strengthened the state’s laws regarding ghost guns. These types of guns are those that do not have serial numbers and typically assembled using kits, individual parts, or 3-D printing. Critically, the new legislation criminalizes not only the possession of a ghost gun — but it also prohibits the possession of the major components of a firearm by anyone other than a licensed gunsmith or dealer. 

Under New York law, a ghost gun is defined as any firearm, rifle, or shotgun that is not serialized. Without a serial number or other manufacturer marking, these weapons can’t be registered with a law enforcement agency — and are thus, untraceable. While New York law has long prohibited individuals from possessing unregistered firearms, the recently enacted legislation also bans individuals from possessing the parts and components to make or assemble them.

These laws make it illegal not only to possess a ghost gun, but they also ban individuals from selling, exchanging, giving, or disposing an unfinished frame or receiver. New York law also prohibits shipping ghost gun kits or components such as unfinished frames and receivers to addresses in the state.

Recent Cases and Examples

Our office recently represented an individual who was tied up in an extensive gun trafficking ring and who was ultimately charged with a slew of counts pertaining to ghost guns, unloaded firearms, and loaded firearms. Despite facing decades behind bars, our office provided a plethora of mitigation material and ultimately convinced the attorney general's office to offer our client a plea to one criminal possession of firearms count and one year in jail. Indeed, by pointing to holes in the government’s proof while simultaneously providing a mitigation package, our client escaped years behind bars and was released early on parole following a short sentence.

CPF, class-E Felony Penalties and Sentences

The criminal penalties associated with violating the CPF laws can be severe. If an individual is found guilty of possessing a ghost gun or an unloaded firearm, they can be convicted of a Class E felony.

Punishment can include a jail sentence of four years, five years probation, and a fine up to $5,000. Notably, however, the statute does also allow for a probationary sentence, making it critical for those charged with CPF to hire an experienced criminal defense attorney to provide persuasive materials to a court in an effort to mitigate one’s exposure.

Your Defense Begins Today

If you are charged with criminal possession of firearms, 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 criminal possession of firearms because the sooner you receive expert counsel, the more likely your matter will end favorably.