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
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