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Criminal Use of a Firearm (First Degree)

Possessing a loaded firearm during the commission of a violent crime or even displaying any firearm while committing a violent crime are serious felonies in New York, but the severity of the charges may depend on the type of other crime committed.

Criminal Use of a Firearm may be charged as an offense of the first degree or the second degree, depending on the type of violent crime committed. In some cases, the difference lies in whether the crime was merely attempted or actually carried out.

While both crimes impose a fine of up to $5,000 upon conviction, the real difference lies in the possible prison sentences. A first-degree charge of criminal use of a firearm under N.Y. P.L. § 265.09 is a Class B felony, with a maximum sentence of up to 30 years, while a second-degree charge of criminal use of a firearm under New York Penal Law, Article 265.08 is a Class C felony, with a maximum sentence of 15 years.

Attorney for First Degree Criminal Use of a Firearm in Manhattan

If you were arrested for first-degree criminal use of a weapon in Manhattan or any of the five boroughs of New York City, then contact an experienced criminal defense attorney to help you. A qualified attorney will be able to explain the charges and possible defenses that might apply.

At Greco Neyland, PC, we represent people arrested on felony criminal weapons charges. We take the time to investigate each client’s circumstances and determine the best way to fight the charges.

With Greco Neyland, PC as your advocate, you will have former prosecutors fighting on your behalf, so we know how the process works. We use our knowledge of criminal legal procedure to help our clients mount an aggressive defense. 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 First Degree Criminal Use of a Firearm


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Types of Charges for First Degree Criminal Use of a Firearm

New York Penal Law, Part 3, Title P, Article 265.09 states that a person is guilty of Criminal Use of a Firearm in the First Degree when that person:

  • Commits any Class B Violent Felony Offense, andeither:
    • Knowingly possesses a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged; or
    • Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

Loaded Weapon

A person may be charged with first-degree criminal use of a firearm if he or she knowingly possesses a deadly weapon that is loaded while committing a Class B violent felony offense. (§ 265.09(1)(a)).

The prosecution must prove beyond any reasonable doubt that the weapon was loaded.

Display of a Weapon

A person may be charged with first-degree criminal use of a firearm if he or she displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm while committing a Class B violent felony offense. (§ 265.09(1)(b)).

The element that a person must display what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm does not require proof that the object displayed was actually any of those weapons.

What must be proved is that a person, during the commission of a Class B violent felony, 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. (See People v Lopez, 73 NY2d 214 (1989); People v Baskerville, 60 NY2d 374 (1983)).


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Definitions of Terms Related to First Degree Criminal Use of a Firearm

Several key terms in the law are legally defined in the statutes, including Class B violent felony, possess, knowingly, serious physical injury, firearm, deadly weapon, and loaded weapon, as well as each of the weapons that are named.

According to N.Y. P.L. Part 2, Title E, Article 70.02(1)(a), Class B violent felony offenses include (with statute cited):

  • An attempt to commit the Class A-I felonies of Murder in the second degree (§ 125.25), Kidnapping in the first degree (§ 135.25), or Arson in the first degree (§ 150.20)
  • Manslaughter in the first degree (§ 125.20)
  • Aggravated  Manslaughter in the first degree (§ 125.22)
  • Rape in the first degree (§ 130.35)
  • A Criminal Sexual Act in the first degree (§ 130.50)
  • Aggravated Sexual Abuse in the first degree (130.70)
  • A Course of Sexual Conduct against a Child in the first degree (§ 130.75)
  • Assault in the first degree (§ 120.10)
  • Kidnapping in the second degree (§ 135.20)
  • Burglary in the first degree (§ 140.30)
  • Arson in the second degree (§ 150.15)
  • Robbery in the first degree (§ 160.15)
  • Incest in the first degree (§ 255.27)
  • Criminal Possession of a Weapon in the first degree (§ 265.04)
  • Criminal Use of a Firearm in the first degree (§ 265.09)
  • Criminal  Sale of a Firearm in the first degree (§ 265.13)
  • Aggravated Assault Upon a Police Officer or a Peace Officer (§ 120.11)
  • Gang Assault in the first degree (§ 120.07)
  • Intimidating a Victim or Witness in the first degree (§ 215.17)
  • Hindering Prosecution of Terrorism in the first degree (§ 490.35)
  • Criminal Possession Chemical Weapon or Biological Weapon in the second degree (§ 490.40)
  • Criminal Use of a Chemical Weapon or Biological Weapon in the third degree (§ 490.47)

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)).

“Serious physical injury” means “physical injury which creates a substantial risk of death or serious protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” (N.Y. P.L. § 10.00(10)).

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.

Each of the weapons listed above is defined in N.Y. P.L. § 265.00.

A “deadly weapon” means “any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged …” (N.Y. P.L. § 10.00(12).

A “loaded weapon” means “any firearm loaded with ammunition which may be used to discharge such firearm (or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm).” (N.Y. P.L. § 265.00(15)). There is no requirement that the defendant knew the firearm was loaded at the time of possession. (See People v. Broomfield, 275 A.D.2d 885 (4 Dept. 2000); People v. Smith, 270 A.D.2d th 719 (3 Dept. 2000); People v. Toribio, 216 A.D.2d 189 (1 Dept. 1995)).

A gun does not need to be fired for a person to be charged under this law, but it must be loaded.


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Elements of First Degree Criminal Use of a Firearm  

Each of the offenses under § 265.09(1) require a judge or jury to first determine if a Class B violent felony offense occurred before considering the issue of criminal use of a firearm.

Commission of a Violent Class B Felony while in Possession of a Deadly Weapon

In order for a defendant to be found guilty of a charge of Criminal Use of a Firearm in the First Degree (Commission of a Violent Class B Felony while Displaying a Weapon) under N.Y. P.L.

§ 265.09(1)(a), a judge or jury must find that a person, beyond a reasonable doubt:

  • Committed any specific Class B violent felony on or about a certain date in a specific county; and
  • Knowingly possessed a deadly weapon that was a loaded weapon from which a shot, readily capable of producing death or other serious physical injury may be discharged.

N.Y. P.L. §265.09(1) applies to offenses committed on or after Aug. 12, 1980.

Commission of a Violent Class B Felony while Displaying a Weapon

For a defendant to be found guilty of a charge of Criminal Use of a Firearm in the Second Degree (Display of a Weapon) under § 265.09(1)(b), a judge or jury must find that a person, beyond a reasonable doubt:

  • Committed any specific Class B violent felony on or about a certain date in a specific county; and
  • Displayed what appeared to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

N.Y. P.L. § 265.09(1)(b) applies to offenses committed on or after Nov. 1, 1996.


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Penalties for First Degree Criminal Use of a Firearm

Criminal Possession of a Weapon under N.Y. P.L. 265.09 is a Class B felony in New York. A Class B felony is punishable upon conviction by a sentence of:

  • Five to 25 years in prison, and/or
  • A fine of up to $5,000

However, criminal use of a firearm in the first degree is such a heinous crime that New York law allows for additional prison time:

“When a person is convicted of criminal use of a firearm in the first degree, the court shall impose an additional consecutive sentence of five years to the sentence imposed on the underlying Class B violent felony offense where the person convicted of such crime displays a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged, in furtherance of the commission of such crime.” (N.Y. P.L. § 265.09(2)).

What this means is that the prison sentence listed above may be enhanced to a term of 10 to 30 years when a loaded weapon is displayed during the commission of a Class B violent felony offense.


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Resources Related to First Degree Criminal Use of a Firearm

New York Penal Law, Part 3, Title P, Article 265.09 — Read the New York State laws pertaining to criminal use of a firearm in the second degree.

Jury Instructions for Criminal Use of a Firearm in the First Degree (Possession of a Deadly Weapon) — Visit the website of the New York State Unified Court System to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including criminal use of a firearm in the second degree (possession of a deadly weapon) on or after Aug. 12, 1980.

Jury Instructions for Criminal Use of a Firearm in the First Degree (Display of a Weapon) — Visit the website of the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including criminal use of a firearm in the second degree (display of a weapon) on or after Nov. 1, 1996.


New York Attorney for First Degree Criminal Use of a Firearm

If you were arrested in New York City for First Degree Criminal Use of a Firearm under N.Y. P.L. § 265.09(1)(a) or § 265.09(1)(b), then you need an experienced criminal defense attorney.

The skilled criminal defense attorneys in Manhattan at Greco Neyland, PC are experienced in defending felony weapon use charges. We work with you at each stage of the case to mount an aggressive defense.

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 weapon charge and any other criminal charges you face.

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