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Gun Laws in New York City

Posted By Sullivan & Brill, LLP || 13-Oct-2017

As you may expect, New York City has one of the strictest gun laws in the country. From the moment a potential gun owner wishes to purchase a gun, one is required to fill out a 17-page application, which, among other things, asks for your birth certificate, proof of citizenship, proof of residence and employment, mental health and disability treatment, and an explanation for why the applicant seeks the license.

Most likely as a reaction to New York’s strict gun laws, very few New Yorkers have a license to possess a firearm. Those that do are generally security guards and individuals who maintain their firearm in their home or place of business. At the end of the day, only an extremely small handful of New Yorkers have the legal right to carry a firearm anywhere in the City.

Who Is Prohibited from Possessing a Firearm?

More significant are the questions asked about the applicant’s criminal history. The application contains a laundry list of prior criminal dispositions that flat-out prohibit a person from possessing any firearms. For instance, anyone who is under indictment or has been convicted of a crime for which they could have been sentenced for more than one year cannot apply to own a gun. In addition, anyone convicted of a felony or misdemeanor crime of domestic violence that involves charges for assault, menacing, or endangering the welfare of a child is also prohibited from applying to possess a firearm. In fact, even if you are subject to an Order of Protection or restraining order – and not yet convicted, you cannot apply. Equally as notable is that those who are deemed “unlawful” users of marijuana or any controlled substances cannot apply to possess a firearm. This means that someone who is convicted of possessing drugs – perhaps for personal use and not sale – is bound by this prohibition.

What If You Are Caught Illegally Possessing a Gun?

So, how about how the criminal law deals with unlawfully possessing a firearm? The New York legislature frequently changes the law, which results in new gun crimes and higher sentence exposure. For example, in 2013, as a result of the Sandy Hook Elementary School shooting, new laws were introduced to deal with assault weapons and semi-automatic rifles, pistols and shotguns. These laws required mandatory registration of these types of weapons. Laws also increased the degrees of gun crimes, like increasing the illegal possession of an unloaded gun on school grounds from a misdemeanor to a felony.

Sentencing for Gun Crimes Is Becoming Harsher

Also, in 2013, sentencing for crimes involving guns became more severe. For instance, if someone is convicted of carrying a gun while trafficking drugs or committing a violent felony, there is a mandatory minimum sentence of 5 years if the gun is loaded and 3 years if the gun is unloaded. And when a case involves a gang and a murder, prosecutors may now seek a sentence of 25 to life in prison (increased from 15 years) when the cause of the murder is gang-related.

District Attorney Policies on Gun Cases in New York City

In New York, each borough (Manhattan, Brooklyn, Queens, Bronx, and Staten Island) has its own individual District Attorney (DA). Although, generally, there are laws in New York that pertain to every citizen in New York, each DA creates their own policy within their borough on how they handle each individual crime. Gun cases are no exception. Each of these DAs attempt to show the other that they are tougher than the other and more effective in solving and prosecuting crimes involving guns. For instance, if you are caught with a gun and charged with possession of a loaded weapon in Brooklyn, any plea offer by the DA’s office will include jail time. The jail time may include 1 year of less (“City Time”) or greater depending on the facts of the case and criminal history of the defendant. This plea policy makes it important for a defendant to consider all options when fighting the case, such as when to plead, when to fight, when to proceed to a pre-trial hearing, and when to take the case all the way to trial. Of course, defendants should explore all of these options with a lawyer who has experience in dealing with these cases, but also a lawyer who will speak honestly with the client, even if it is advice the client is not happy to hear about.

In Queens, (as well as Brooklyn), there exists a separate courtroom just for gun cases (“the Gun Part”). In this part, there is a uniformity to the way the cases are handled. Each case will be handled by the same Judge, and this Judge will preside over any pre-trial hearing or trial. The ideal behind the “gun part” is that gun arrests are comprised of similar legal issues and similar fact patterns. For instance, guns are usually recovered from a defendant’s inside pants or waist band, vehicle, or home (usually involving a search warrant or a consensual search). Other times, police allege that guns are found in the proximity of a defendant either by choice or if the weapon was tossed. The point is, because there are similar and recurring facts that make up gun cases, the idea is that that if ONE court part will hear them, the case will move more efficiently and uniformly.

By the same token, gun cases that are heard in gun parts, or any court part for that matter, often involve the need for an attorney to file pre-trial suppression motions in order to persuade a Judge to suppress the weapon so it will not be part of the DA’s case. The idea behind the suppression is based on the requirements under the 4th Amendment of the U.S. Constitution. If we show a Judge that the police violated these constitutional requirements, it’s a powerful tool that defense attorneys have that, if successful, will ultimately lead to a favorable resolution of the case for the client.

Important Pieces of Information to keep in mind when dealing with a gun case in New York

Airport Cases: First, let me tell you about guns found in a person’s luggage at an airport. In New York City, we are bordered by 2 of the busiest airports in the United States – JFK and LaGuardia International. I have defended many clients who have been arrested and charged with illegal possession of a gun, I have often seen cases where client comes from another state in which they are licensed to carry a concealed weapon – such as California or Texas – but nevertheless are arrested when they land in New York because their weapon is stowed in their luggage. Those passengers, and prospective clients, are in for a rude awakening, which is that their license to carry in one state does not transfer to another – even if they are innocently flying into New York. I regret to say that even those passengers who never intended for New York to be their final destination, but are just laying over or connecting to another flight, still get caught up in this net. There is no doubt that someone who finds themselves with this problem had no idea they were violating the gun laws in New York, nor did they ever intend to.

Possession of a Weapon in One’s Home or Place of Business: Normally, if a defendant is charged with possession of a loaded weapon in New York they are subject to violent felony charges and potential jail time. It is true however, that there is an exception to this gun charge. The exception is that if a defendant possesses a weapon in their home or place of business, the defendant will be charged with a misdemeanor, which is a far less serious degree of crime with far less jail time exposure. Please note, though, that this exception will not apply to you if you have a prior criminal record – or if you are accused of using the weapon in the course of criminal conduct.

Lawful Use and Possession of a Gun: There are certain circumstances where a person possesses a gun unlawfully but there are legal justifications for that unlawful possession enabling a defendant to avoid criminal charges. Two examples are “self-defense” and “temporary lawful possession of a gun.” Regarding “self-defense,” if you possess and use a gun to defend yourself, you may not face criminal charges as long as your actions meet the definition of “self-defense.” Self-Defense, or “Justification,” is defined in New York as the authority to use physical, or even deadly force, if a defendant reasonably believes that he or a third person is in imminent danger of physical or deadly force. “Temporary lawful possession of a gun” exists when a defendant is in possession of a weapon, but is not guilty of unlawful possession of that weapon because the defendant found the weapon shortly before their possession and intended on turning it over to authorities.

If you’re currently facing gun crime charges of any degree or nature, do not wait to contact a New York weapons defense attorney at Sullivan & Brill, LLP. Call us at (646) 741-3856 to schedule a free consultation.