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Criminal Possession of a Firearm

In an effort to toughen its already tough gun laws, New York in 2013 created a law enabling police and prosecutors to file illegal gun possession charges as either a misdemeanor or a felony. Can you guess how most criminal gun possession cases are charged today?

That’s right; because of this new law, what was recently “only” a misdemeanor is now a felony in most cases. Knowingly possessing an operable firearm — whether it is a handgun, rifle, shotgun, or assault weapon — without the proper license (or licenses) is a Class E felony in New York under N.Y. Penal Law 265.01-b(1).

Penalties for a felony conviction of Criminal Possession of a Firearm include one to four years in prison and a fine of up to $5,000. (The maximum penalties for a misdemeanor are one year in jail and a fine of $1,000.) These days, first-time offenders are usually the only people fortunate enough to face a misdemeanor charge for gun possession instead of a felony charge.

Failure to register a firearm is also a Class E felony under N.Y. P.L. 265.01-b(2) and imposes the same penalties as § 265.01-b(1) upon conviction.

Attorney for Possession of a Firearm in Manhattan

If you were arrested for felony criminal possession of a firearm in Manhattan or any of the five boroughs of New York City, you should contact an experienced criminal defense lawyer to assist you with the legal process. A qualified attorney will be able to explain the charge and possible defenses that might apply to the case. 

At Greco Neyland, PC, we represent people arrested on criminal weapons charges. We take the time to investigate each client’s circumstances in order to mount an aggressive defense.

With Greco Neyland, PC as your advocate, you will have former prosecutors fighting on your behalf, so we know how the process works. We represent clients in Manhattan (New York County), Brooklyn (Kings County), The Bronx, and the other boroughs of New York City. Call us today at (212) 951-1300 to schedule a free consultation.


Information about Felony Criminal Possession of a Firearm in New York City


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Types of Felony Criminal Possession of a Firearm

Citing an increase in weapons crimes, the New York State Legislature in 2013 enacted New York Penal Law, Part 3, Title P, Article 265.01-b(1), which simply states that a person is guilty of Felony Criminal Possession of a Firearm when that person “knowingly possesses any firearm.”

Firearms that are properly registered and properly carried are exempted from the law, but New York City requires its own gun license in addition to a New York state license.

New York does not recognize out-of-state gun licenses, so it is also important to note that a gun registered anywhere outside the State of New York is illegal if brought into New York or New York City without obtaining a state or city license.

Even if a gun is stowed in a locked case and the visitor is merely passing through the state (which has had dire implications for some air travelers), a gun is illegal if not registered in the proper New York state or city jurisdictions. Even possession of an unloaded gun may result in a felony arrest; a gun must be “operable,” but it does not need to be loaded to trigger an arrest.

A companion law also enacted in 2013, N.Y. P.L., Part 3, Title P, Article 265.01-b(2), makes it a felony if a person possess a firearm and “knowingly fails to register” it in proper New York state and/or New York City jurisdictions.


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Definitions of Terms Related to Felony Criminal Possession of a Firearm

Several key terms in the law are legally defined in the statutes, including firearm, possess, and knowingly.

A “firearm” is defined in N.Y. P.L. 265.00(3) as:

  • Any pistol or revolver (weapons commonly known as handguns); or
  • A shotgun having one or more barrels less than 18 inches in length; or
  • A rifle having one or more barrels less than 16 inches in length; or
  • Any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon as altered, modified, or otherwise has an overall length of less than 26 inches; or
  • An assault weapon.

The length of the barrel on a shotgun or rifle is determined by measuring the distance between the muzzle and the face or the bolt, breech, or breechlock when closed and when the shotgun or rifle is cocked. The overall length of a weapon made from a shotgun or rifle is the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore. (Id.)

Firearm does not include an “antique firearm,” which means “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.” (N.Y. P.L. 265.00(14)).

A “shotgun” is legally 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.” (N.Y. P.L. 265.00(12)).

A “rifle” is legally 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 metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger.” (N.Y. P.L. 265.00(11)).

New York’s definition of an “assault weapon” is lengthy; it appears at N.Y. P.L. 265.00(22).

A gun does not need to be loaded for a person to be charged under this law, but it must be “operable.” To be operable, a firearm must be “capable of discharging ammunition,” although previous court cases have established that the possessor of a gun does not need to know if the gun was operable in order to be charged.

Under the law, “possess” means to have physical possession or otherwise to exercise dominion or control over tangible property. (N.Y. P.L. Part 1, Title A, Article 10.00(8)).

Possession may be “actual” or “constructive.” Actual possession occurs when the police discover a firearm on a person or his or her belongings and no one else has equal access to it. Constructive possession occurs when more than one person has access to a firearm, such as a firearm in a room or a vehicle when more than one person has access to it.

A person “knowingly” possesses a firearm when that person is “aware” that he or she is in possession of a firearm. (N.Y. P.L. Part 1, Title B, Article 15.05(2)).


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Elements of Felony Criminal Possession of a Firearm

In order for a defendant to be found guilty of a charge of Felony Possession of a Firearm, a judge or jury must find that a person, beyond a reasonable doubt, committed the following elements:

  • Possessed a firearm on or about a certain date in a specific county;
  • Knowingly possessed a firearm on or about a certain date in a specific county; and
  • The firearm possessed was operable.

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Penalties for Felony Criminal Possession of a Firearm

Criminal Possession of a Weapon under N.Y. P.L. 265.01-b(1) is a Class E felony in New York. A Class E felony is the lowest-level felony in New York, and is punishable upon conviction by a sentence of:

  • One to four years in prison, and/or
  • A fine of up to $5,000

New York law does allow for an “alternative definite sentence” for Class E felonies committed by first-time offenders, with the court given the discretion to impose a fixed term of one year or less, but only after the court regards the “nature and circumstances of the crime and … the history and character of the defendant.” (N.Y. P.L. Part 2, Title E, Article 70.00(4)). Alternative definite sentences are rare in weapons cases, especially in New York City.


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Resources Related to Felony Criminal Possession of a Firearm

New York Penal Law, Part 3, Title P, Article 265.01-b(1) — Read the New York State law pertaining to felony criminal possession of a firearm.

Jury Instructions for Felony Criminal Possession of a Firearm — Visit the website of the New York State Unified Court System to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including felony criminal possession of a firearm on or after March 16, 2013.


Attorney for Felony Criminal Possession of a Firearm in New York City

If you were arrested in New York City for Felony Criminal Possession of a Firearm under N.Y. P.L. § 265.01-b(1), contact an experienced criminal defense attorney.

The skilled criminal defense attorneys at Greco Neyland, PC are experienced in defending felony weapon possession charges. We serve clients throughout the five boroughs of New York City, including Manhattan, Brooklyn, and The Bronx. Contact the dedicated lawyers at Greco Neyland, PC today by calling (212) 951-1300 to schedule a free consultation about your gun charge.

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