Ask any defense lawyer from Manhattan and Brooklyn to Queens and Westchester County. There are few criminal charges less forgiving and more aggressively enforced than Criminal Possession of a Weapon in the Second Degree pursuant to New York Penal Law 265.03. Sometimes referred to as “CPW 2,” an arrest in NYC or anywhere in the Hudson Valley is potentially devastating. Make no mistake. Both the police and District Attorneys can be, and routinely are, ruthless in their prosecution of this offense and all other New York weapon crimes.
Definitions and ElementsYou are guilty of Penal Law 265.03(3) when you possess a loaded firearm (pistol, revolver, handgun, etc.) outside your home or place of business without a permit or license. You need not discharge the gun or waive it around. The law makes no distinction for this particular offense depending on how you are accused of using the revolver nor, depending on the specific facts, whether it is physically loaded or the ammunition is immediately nearby.
Before addressing the elements of illegally possessing a loaded firearm, pay close attention to the following. If you have a permit out of state and possess that revolver or pistol in New York City or State without the necessary permit in this jurisdiction, barring a very rare exception, you are subject to PL 265.03 and the harsh sentencing laws. Yes, you may have been unaware of the legal statutes or SAFE Act when you visited family here, but in the eyes of the law you are no less guilty. While practically there may be a difference, it is of no consequence whether you purchased your firearm on the street or the Port Authority Police Department arrested you after you tried to declare your out-of-state pistol before boarding your plane home at JFK or LaGuardia Airport. Simply, NYC airport gun arrests are no different than those on the street.
Penalties and PunishmentThe law is, and your understanding should be, abundantly clear. If you are convicted of this class “C” violent felony your sentencing judge in a New York City Supreme Court or an upstate County Court can incarcerate you for as long as fifteen years. By law, the minimum sentence is a non-discretionary three and a half years. What is the most frightening consequence of a PL 265.03 conviction is that this type of sentence assumes you have absolutely no criminal history in any capacity prior to your arrest for Second Degree Criminal Possession of a Weapon. Should you be a predicate felon, then the minimum term of incarceration is five or seven years depending on the nature of your record.
Example and Hypothetical ScenarioIf you possess your duly licensed and loaded pistol from Maine, Texas, Florida, California or New Jersey without a license here, expect the NYPD, Port Authority Police or any other law enforcement agency to arrest you upon learning of your illegal possession. What makes matters worse for those who believe the Empire State has run afoul of the Second Amendment, is that under the laws of New York, "loaded" does not mean a clip in the gun or a bullet in the chamber. If the firearm is capable of being loaded and the ammunition is in the case, or even in your pocket, the District Attorney of Manhattan, Queens, Westchester, Brooklyn, or any other county can still charge possibly you on a felony complaint and present your case to a Grand Jury to secure an indictment. Even if there is no ammunition, you are not free from felony prosecution. While you may be able to avoid an indictment for this offense, prosecutors will be at the ready to charge you with the class “E” felony of Criminal Possession of a Firearm, New York Penal Law 265.01-b(1).
Related Offenses and Collateral IssuesCPW 2 is closely related to various other weapons offenses, all of which have their own unique elements and prerequisites, including Criminal Possession of a Weapon in the First, Third and Fourth Degrees. Keep in mind that a conviction for this crime will set you up for failure if you are a legal resident or have a visa. The United States government can deem it a crime of Moral Turpitude and, obviously, a Firearm Offense for immigration purposes. Of course, this does not consider what can happen to your professional license and certifications if you work in the legal, financial, medical or other fields.
Your Case, Your Defense, Your FutureHave no misgivings. Petrifying a CPW 2 charge may be, but by no means does that mean all is lost. Does your NY gun lawyer have the grounds to suppress the search of your person or vehicle? Maybe the NYPD unlawfully took your statement? Is the firearm actually operable? If nothing else, can you mitigate your conduct and exposure? At bottom, with you career, livelihood and freedom all at stake, it is imperative to explore all viable defenses.
The attorneys at Saland Law are by no means apologists for those seeking to actively hurt others, but the role of our criminal defense counsel and former Manhattan prosecutors is to represent you to the best of our ability regardless of the crimes you face and the veracity of the same. Whether your arrest is a result of a misunderstanding of the Penal Law, the police are relying on a legal presumption of your constructive possession of a firearm in a car with other passengers, or some other set of allegations, never forget that when your life and future is on the line there is no substitute for experience, knowledge and advocacy.
Call the firearm lawyers and former Manhattan prosecutors at 212.312.7129 or contact us online today.