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Criminal Sale of a Firearm (Third Degree)

The sale of a gun, or just the intention to sell a gun, by a person not authorized to do so is a violent felony offense throughout New York. There are three degrees of the crime “Criminal Sale of a Firearm” and penalties for all of them are harsh, imposing expensive fines and multi-year prison sentences, depending on the number of guns in question.

Criminal Sale of a Firearm in the Third Degree is a Class D felony under New York Penal Law, Part 3, Title P, Article 265.11. This is the least serious of the felony crimes that may be charged in a criminal sale of a firearm case. An arrest for this charge may occur when a person who is not authorized to possess a firearm possesses one to four guns anyway and sells, exchanges, gives away, or disposes of them, or has the intent to sell them.

Penalties for a conviction of the criminal sale of a firearm in the third degree include up to seven years in prison and a fine of up to $5,000, as well as the seizure and destruction of the gun or guns.

Attorney for Third Degree Criminal Sale of a Firearm in Manhattan

If you were arrested for third-degree criminal sale of a firearm in Manhattan or any of the five boroughs of New York City, you should contact a 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 firearm charges. We take the time to investigate each client’s situation. 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 put our clients in the best possible position going forward.

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 Third Degree Criminal Sale of a Firearm in New York City


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Types of Criminal Sale of a Firearm in the Third Degree

A gun owner’s license is required in New York in order to possess a pistol or revolver legally. New York City’s gun laws exist in addition to New York State’s gun laws and the city laws are more restrictive than the state laws, requiring registration with the city as well as the state.

New York Penal Law, Part 3, Title P, Article 265.11 states that a person is guilty of Criminal Sale of a Firearm in the Third Degree when that person is not authorized pursuant to law to possess a firearm (but does so anyway) and knowingly and unlawfully:

  • Sells, exchanges, gives or disposes of an operable firearm or large capacity ammunition feeding device to another person; or
  • Possesses an operable firearm with the intent to sell it.

Note: The illegal sale of five or more firearms elevates the crime to a second-degree offense (Class C violent felony), while the illegal sale of 10 or more firearms elevates the crime to a first-degree offense (Class B violent felony). (See N.Y. P.L. §§ 265.12 and 265.13).


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Definitions of Terms Related to Criminal Sale of a Firearm in the Third Degree

Several key terms in the law are legally defined in the statutes, including possess, firearm, operable, not authorized by law to possess a firearm, knowingly, unlawfully, dispose of, large capacity ammunition feeding device and intent.

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 weapon 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 weapon, such as a weapon in a drawer or glove box of a vehicle when more than one person has access to it.

A “firearm” is defined in N.Y. P.L. § 265.00(3) as “any pistol or revolver.” Certain types of shotguns or rifles, as well as an “assault weapon,” are also considered to be “firearms,” but an “antique firearm” is not. (See N.Y. P.L. § 265.00 for definitions of these other weapons.)

A firearm does not need to be loaded for a person to be charged under this law, but the firearm 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.

A person has no legal right to possess a firearm, with certain exceptions granted under N.Y. Penal Law Article 400 (Licensing and Other Provisions Related to Firearms), which include proper licensing and usage. Therefore, a person is “not authorized pursuant by law to possess a firearm” when that person “has no legal right to possess a firearm,” such as when a person possesses a gun without a proper license or licenses.

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

A person “unlawfully” sells, exchanges, gives or disposes of a firearm or large capacity ammunition feeding device when that person has no legal right to do so. This includes people who do not have a gun license and other people prohibited from possessing a gun, such as convicted felons. (See N.Y. P.L. § 400).

“Dispose of” means “to dispose of, give, give away, lease, loan, keep for sale, offer, offer for sale, sell, transfer and otherwise dispose of.” (N.Y. P.L. § 265.00(6)).

“Large capacity ammunition feeding device” means “a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition.” (N.Y. P.L. § 265.00(23)). This definition was amended by the New York State Legislature on April 15, 2013 and other definitions apply to crimes allegedly committed prior to that date.

“Intent” means “conscious objective or purpose.” Thus, a person possesses a firearm with intent to sell it when his or her conscious objective or purpose is to sell the firearm. (Criminal Jury Instructions 2d [NY] Penal Law § 265.11(2)).


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Elements of Criminal Sale of a Firearm in the Third Degree

In order to obtain a conviction in a case filed under N.Y. P.L. § 265.11, different elements must be proved beyond any reasonable doubt depending on the charge. That is because under the statute, the crime may be the sale of a firearm or ammunition device or the crime may be the possession of up to four firearms with the intent to sell any one of them.

Sale of a Firearm or Ammunition Device

In order for a defendant to be found guilty of a charge of Criminal Sale of a Firearm in the Third Degree (Sale of a Firearm or Ammunition Device) under N.Y. P.L. § 265.11(1), a judge or jury must find that a person, beyond a reasonable doubt:

  • Was not authorized pursuant to law to possess a firearm (or large capacity ammunition feeding device) on or about a certain date in a specific county;
  • Unlawfully sold, exchanged, gave, or disposed of a firearm (or large capacity ammunition feeding device) to another person on or about a certain date in a specific county; and
  • Knowingly and unlawfully sold, exchanged, gave, or disposed of a firearm (or large capacity ammunition feeding device) to another person on or about a certain date in a specific county; (and)
  • (If the item is a firearm), the firearm possessed was operable.

N.Y. P.L. §265.11(1) applies to offenses committed on or after April 15, 2013. (As noted above, for crimes allegedly committed prior to that date, a different definition of “large capacity ammunition feeding device” applies.)

Possession of up to Four Firearms with Intent to Sell

In order for a defendant to be found guilty of a charge of Criminal Sale of a Firearm in the Third Degree (Possession with Intent to Sell) under N.Y. P.L. § 265.11(2), a judge or jury must find that a person, beyond a reasonable doubt:

  • Was not authorized pursuant to law to possess a firearm on or about a certain date in a specific county;
  • Knowingly and unlawfully possessed a firearm on or about a certain date in a specific county;
  • Knowingly and unlawfully possessed a firearm with the intent to sell it on or about a certain date in a specific county; and
  • The firearm possessed was operable.

N.Y. P.L. §265.11(2) applies to offenses committed on or after Nov. 1, 1999.


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Penalties for Criminal Sale of a Firearm in the Third Degree

Criminal sale of a firearm in the third degree is a Class D Violent Felony Offense in New York. A Class D violent felony is punishable upon conviction by:

  • Up to seven years in prison; and/or
  • A fine of up to $5,000

The firearm or firearms will also be confiscated by the police upon arrest and destroyed after a conviction.


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Resources Related to Criminal Sale of a Firearm in the Third Degree

New York Penal Law, Part 3, Title P, Article 265.11 — Read the New York State law pertaining to criminal sale of a firearm in the third degree.

Jury Instructions for Criminal Sale of a Firearm in the Third Degree (Sale of a Firearm or Ammunition Device) — 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 sale of a firearm in the third degree (sale of a firearm or ammunition devices) on or after April 15, 2013.

Jury Instructions for Criminal Sale of a Firearm in the Third Degree (Possession of Up to Four Firearms with Intent to Sell) — Visit the website of the NYSUCS to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including criminal sale of a firearm in the third degree (possession of up to four firearms with intent to sell) on or after Nov. 1, 1999.


Attorney for Criminal Sale of a Firearm in the Third Degree in New York City

If you were arrested in New York City for Criminal Sale of a Firearm in the Third Degree under N.Y. P.L. § 265.11(1) or § 265.11(2), then contact an experienced criminal defense attorney.

The skilled criminal defense attorneys at Greco Neyland, PC are experienced in defending charges of criminal sale of a firearm. We work with you at each stage of the case to mount an aggressive defense against the 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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