New York City And Westchester Gun Charge Defense Lawyers
We Are On Your Side
Our Westchester and NYC criminal Defense Lawyer have extensive experience in defending gun charges. Gun charges are taken very seriously in New York and Westchester and if you are facing a gun charge, you need aggressive representation. Gun charges have very serious consequences and you need an aggressive attorney. Our NYC and Westchester criminal defense lawyers are on your side.
New York’s gun laws are complicated and the severity of the possible sentence varies based upon a lot of factors. The possession of a firearm is a misdemeanor which is punishable by up to a year in jail. The possession of a firearm becomes a Class D felony when the person who possesses the weapon has previously been convicted of any crime. Possession of a firearm is also a Class D felony when one possesses three or more firearms, a firearm silencer, an assault weapon, a machine-gun or any other firearm or weapon simulating a machine-gun or which can be made into a machine gun. A person can also be convicted of a Class D felony if they knowingly possess a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of the weapon. Not only firearms are class D felonies but also the possession of a disguised gun or a large capacity ammunition feeding device.
New York’s gun laws make it a Class C Felony to possess a loaded firearm, five or more firearms or with intent to use a firearm unlawfully against another person, possessing a machine-gun; or a disguised gun.
Most gun cases based upon street encounters or traffic stops, involve search and seizure issues and this is where the cases are won and lost. If a gun was found through an unlawful search or an invalid warrant, these cases can be won. Additionally, possession issues are very complicated and require extensive preparation and investigation to fight. Often if a gun is found in a car or home, everyone will be arrested and charged. While technically, the police are allowed to do this, defending the case depends on establishing that you did not possess the gun even though you may have been near the gun. New York law requires intentional possession of a gun, so obviously you can’t possess a gun that you didn’t know about.
What Are My Defenses To A Gun Charge
New York’s Gun Laws Are Some Of The Most Restrictive And Draconian In The Country.
I Was Just Travelling Through The State
New York does not honor firearms permits issued by other states. In order to be licensed to possess a firearm in New York, you have to be a New York resident and get a New York firearm permit. If you do not have a New York State gun permit, and are in New York State with a gun you can be charged with criminal possession of a weapon, even if you have a license or permit from another state. There is one exception, 18 USCS § 926A, (also knows as the “Safe Passage Act”) which permits the interstate transportation of firearms, provided that you can lawfully possess the gun in the state that you are coming from, and the state you are going to, and that NYS is only a state being passed through and is not a destination (final, overnight or otherwise). It may be permitted to stop briefly in NYS, but only for gas or food, not as a destination. The gun must be unloaded, separate from the ammo and in a locked container (other than the glove box or console).
Temporary Lawful Possession
If you came into possession of a gun lawfully, under circumstances where you were not culpable, you have a defense. New York recognizes a defense to possession of a weapon, where the person who possessed the weapon came into possession in a manner that was not unlawful, they possessed the gun temporarily and intended to only possess it long enough to safely dispose of it. For example if you found a gun and were on your way to surrender it to the police station, or to claim a reward or were participating in a gun buy back, then you have a defense to the gun charge.
Lack Of Possession
Merely being near someone who has a gun, is not in and of itself a crime. Rather New York law requires knowing possession of a gun. That is not to say that the gun has to be on your body, since New York does recognize the doctrine of constructive possession of a gun. However, if you did not have actual or constructive possession of a gun, that is a defense. Often when a gun is found on one person in a car, or concealed within a car, the police arrest and charge everyone, but these are defendable cases since it is difficult to prove anyone except the driver possessed the gun. Likewise, in cases where a gun is concealed in a back pack, or under a seat with several passengers, even the driver has a defense of lack of possession.
What Are The Requirements Of The Travel Through Exception?
The 18 USCS §926A states: “Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter [18 USCS §§ 921 et seq.] from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, that in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”
This new rule pre-empts New York’s gun laws and provides an affirmative defense to any criminal charges under federal law.
The US Constitution - The Second Amendment
The legality and constitutionality of New York’s restrictive gun laws, with the Second Amendment, remains a source of continuing debate. The Second Amendment guarantees the right of the people to bear arms, however caselaw has found that merely requiring a permit does not infringe on that right. The District of Columbia statute which outright barred gun ownership was found unconstitutional. New York in recent years has sought to dodge constitutional arguments concerning its gun laws. The right to keep a gun in the home, under most constitutional doctrine is a recognized constitutional right and New York’s gun laws are ripe for an argument that to the extent they prohibit gun ownership in the home, they may be unconstitutionally applied. In a recent challenge to New York’s gun laws that prohibited the transportation of guns from the home to a range or to a second home location, New York opted to avoid constitutional analysis of its gun law by amending the law.
New York City requires its own separate permit to carry within the five boroughs of New York City including the Bronx, Manhattan, Queens, Brooklyn and Staten Island.
Law Office of Michael H. Joseph, PLLC
The Law Office of Michael H. Joseph, PLLC, has been helping injured victims recover compensation for their injuries for over 25 years. Our attorneys are members of several prestigious organizations, including:
- New York State Trial Lawyers Association
- American Association for Justice
- New York County Bar Association
- Westchester County Bar Association
To request your free initial consultation with our team, call our New York City office at (212) 858-0503 or our White Plains office at (914) 574-8330. You can also request a case review online.
