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First-Time Gun Charge in NY: What to Expect
A gun charge in New York City is very serious, even if it is a first-time gun charge. Although you may be able to avoid prison and even get your charges dropped, you must navigate your case very carefully.
This guide discusses common considerations for first-time gun charges. If you are facing gun charges in New York City, contact NYC criminal lawyer Cody Warner for a free consultation. We can discuss your circumstances and determine the best defense strategy for your case.
Typical First Time Gun Charges
New York has many different laws that prohibit the possession of various weapons. Gun cases are not always prosecuted under the same statute. The specifics charges depend on factors like whether the gun was loaded and whether the gun was brandished or discharged.
Although the prosecution can charge gun possession under several different statutes, the most common gun charge in New York City is Criminal Possession of a Weapon in the Second Degree (P.L. 265.03). A person is guilty of criminal possession of a weapon in the second degree when:
(1) with intent to use the same unlawfully against another, such
person:
(a) possesses a machine-gun; or
(b) possesses a loaded firearm; or
(c) possesses a disguised gun; or
(2) such person possesses five or more firearms; or
(3) such person possesses any loaded firearm.
Although, as you can see, the prosecution can charge you with P.L. 265.03 under different theories, the most common scenario is when a person possesses a loaded firearm. Accordingly, the advice in this guide focuses on that scenario. If your situation is different (i.e., you didn’t possess a loaded firearm), contact an NYC gun charge lawyer to discuss how your case is likely to resolve.
Possible Defenses for First Time Gun Charges
Although the consequences of unlawful gun possession in New York can be very serious, you may have a legal defense that warrants your charges being dropped. The most common gun charge defenses are unlawful seizure and no possession.
Unlawfully Seized Gun
The 4th Amendment to the U.S. Constitution prohibits unreasonable seizures by the government. Although 4th Amendment law is complicated, the bottom line is that the evidence the government recovered may be inadmissible if the government violated your constitutional rights.
For instance, let’s say the police unlawfully arrested you on the street and searched your backpack without your permission. If the police recover a gun in your backpack, you may have a strong legal argument that your 4th Amendment right against unreasonable searches and seizures was violated. If your lawyer convinces the court that your rights were violated, then the court should suppress the gun—and testimony about the recovery of the gun—from evidence. If that happens, the prosecution will unlikely be able to prove its case and should dismiss the charges.
4th Amendment law is very complicated, so if you think that your rights were violated, contact an NYC criminal lawyer to discuss whether you have a winning 4th Amendment argument.
No Possession
Another common defense to gun charges is the “no possession” defense. This defense typically occurs in situations where the gun was not found on you, but the prosecution argues that you “constructively” possessed the gun.
For instance, let’s say that you are in the passenger seat of your friend’s car, and the police pull over the car. The police search the car, and they find a loaded gun underneath the seat you were sitting in. Although you may be arrested and charged with possessing the gun, you may be able to argue that you didn’t possess the gun. After all, it was your friend’s car, and the prosecution may not have evidence to prove that you knew the gun was in the car.
In these cases, the prosecution may try to prove possession through other evidence, such as DNA or fingerprint analysis of the gun. However, if your DNA or fingerprints are not on the gun, and there is no other evidence (such as a confession) that connects you to the gun, you may have a strong defense.
Typical Outcomes for First-Time Gun Charges
Prosecutors in New York City take gun charges very seriously. Prison is always a possibility. In fact, the sentence range on a conviction to Criminal Possession of a Weapon in the Second Degree is currently 3.5 years to 15 years in prison, even for a first-time offender
That said, even if you don’t have strong legal defenses, your lawyer may be able to negotiate a deal to a reduced charge that keeps you out of prison. Whether your lawyer can work out a deal that keeps you out of prison depends on you and the circumstances of your case. Some common factors that the prosecution considers when determining whether to offer you a good deal are:
- Was the gun discharged?
- Did you brandish the weapon?
- Was anyone hurt by the gun?
- Do you have alleged ties to gang activity?
- Are you from outside of New York and lawfully possess it in your home state?
- Did you legally purchase the gun?
- Have you been convicted of other crimes?
- Do you have strong ties to your community?
Before your lawyer negotiates with the prosecution, he will assess the specifics of your case to determine the best angle to get you the best possible outcome.
Need Help? Contact Cody Warner, P.C.
If you have gun charges in New York City, contact Cody Warner, P.C. for a free consultation. We can discuss your case and determine the best path forward.