Specifically, Criminal Possession of a Weapon in the Second Degree is the most common guns accusation in New York and New York City. If a person is reportedly found by police with a firearm without a license, including rifles and shotguns, the exact New York firearms charge will rely on several criteria.
Among these variables include the location, whether outside a residence or place of business, in a vehicle, and whether the weapon was allegedly used in the conduct of another crime. Many firearms crimes in New York carry a minimum mandatory prison sentence.
New York City Illegal Searches and Gun Charges
Police allegedly recover firearms frequently as a result of an unlawful search and seizure. Under the United States and New York state constitutions, a person cannot be searched solely because a police officer desires to conduct a search.
Before patting down a person for weapons or conducting a thorough search, the police must establish a certain level of suspicion based on the claimed circumstances. The law governing the search and seizure of weapons such as rifles is extremely fact specific.
Firearms New York Automobile and Home Assumptions
A legal presumption exists in New York for firearms and weapons in general discovered in a vehicle. In accordance with Penal Law section 265.15(3), Presumptions of possession, unlawful purpose, and defacement, if a firearm is discovered in a car, it is presumed that all occupants own the weapon.
There are three exceptions to the weapon presumption in a vehicle.
First, if the weapon is “discovered on the person of one of the passengers.”
Second, the presumption does not apply to on-duty drivers for hire, such as those for taxis, Uber, and Lyft.
Third, if one occupant of the vehicle possesses a valid firearm license.
Defeating the automobile firearm presumption is not rare. The presumption indicates that a judge or jury may, but is not compelled to, conclude that a charged individual possessed a firearm discovered in a vehicle.
The decision to draw this conclusion is solely dependent on the data. The two most important factors in determining whether the automobile firearm presumption applies are whether the gun was discovered in an open or closed space (such as a glove compartment or center console) and the distance between the individual charged with firearms possession and the location of the gun.
Possession of a Firearm and New York Protective Orders
Typically, when a person is charged with certain crimes in New York, such as Assault or Domestic Violence, a court will issue a Protection Order. In most circumstances, the Order of Protection is comprehensive rather than limited. A prerequisite of an Order of Protection is the surrender of all firearms by a specified day and time, typically to the local police precinct, police station, or police barracks. Failure to relinquish a firearm as mandated by an Order of Protection may result in Criminal Contempt proceedings.
Airport Firearm Charges in Queens and New York
The patchwork of gun laws around the nation may be perplexing. As previously stated, weapons laws vary by state. When non-New York people who legally own and possess a firearm in their home state arrive in New York with their firearm, they are commonly charged with a firearms offense. There are often two categories of such instances. First, out-of-state travelers who arrive at John F. Kenney Airport and LaGuardia Airport, New York’s two most popular airports. Second, residents of other states who drive into the state of New York while carrying a handgun.
Two firearms charges may apply in such a scenario. First, Criminal Possession of a Firearm, Section 265.01-b of the Penal Law, which states: “A person is guilty of criminal possession of a firearm if he or she possesses any firearm or.” Second, Criminal Possession of a Weapon in the Second Degree, Penal Law Section 265.03(3): Both statutes need possession, but it must be knowing possession.
Section 15.05(s) of the Penal Law defines knowingly as the consciousness of a particular act. Therefore, it is a defense if a non-New York resident who legally has a firearm in his or her home state entered New York unaware that he or she held a firearm.
There are numerous reasons why a person might forget that he or she has a firearm if the gun restrictions in their home state are not nearly as rigorous as those in New York. A judge or a jury must determine whether a person knowingly possesses a handgun. The trial instruction about the definition of knowingly is as follows: “The question inevitably arises as to how to assess whether a person possessed the knowledge, or awareness, necessary for the commission of a crime. To make this conclusion, you must determine whether the required knowledge can be deduced beyond a reasonable doubt from the established evidence. This includes, but is not limited to, what, if anything, the person did or said.
The Law Office of Benjamin Greenwald is a criminal defense law firm that serves the Orange County, NY area. The firm represents clients who have been charged with unlawful possession of a firearm. Attorney Greenwald has extensive experience handling these types of cases and has a strong track record of achieving positive outcomes for his clients. He thoroughly investigates each case and works tirelessly to build the strongest defense possible. If you have been charged with unlawful possession of a firearm in Orange County, NY, contact the Law Office of Benjamin Greenwald to discuss your case.