Charged with a Crime in New York?

Generally speaking, a weapon may be defined as any object that can be deliberately used to hurt someone. While guns and knives immediately come to mind, other objects are also considered weapons when someone purposefully uses them to injure themselves or someone else. In such cases, something as simple as a hammer, a car, or even a frying pan could be classified as a weapon.

For legal purposes, New York City classifies various types of knives, firearms, and similar items as weapons. With certain exceptions, it is illegal to have or “carry” these items in New York City. 

Depending on the circumstances, possession of a weapon may result in misdemeanor or felony charges. With so much at stake, hiring an experienced criminal defense attorney is critical for anyone facing weapons charges in the five boroughs.

The table below summarizes the different weapon charges in NYC based on the degree of the charge, and their respective consequences. Read on for a more detailed breakdown of NYC’s weapon charges.

Degree of Charge	Description of Possible Crimes	Section Code	Consequences
Criminal Possession of a Weapon in the First Degree (Class B felony)	• Possession of explosive substances with the  intent to use them to hurt or kill someone else, or destroy property.   • Possession of at least 10 firearms.	Criminal Possession of a weapon in the first degree can be found in Penal Code § 265.04.	Between 5 and 25 years in prison, and up to $30,000 in fines.
Criminal Possession of a Weapon in the Second Degree (Class C felony)	• Possession of a machine gun, loaded firearm, or “disguised gun” with intent to commit a crime against another person. • Possession of at least five firearms. • Possession of any loaded firearm.	Criminal Possession of a weapon in the second degree can be found in Penal Code § 265.03.	Between 3.5 and 15 years in prison, and the defendant may be required to pay a fine.
Criminal Possession of a Weapon in the Third Degree (Class D felony)	There are 10 different factors used to determine possession of a weapon in the third degree.  For example: • The state proves that they committed a crime defined as criminal possession of a weapon in the fourth degree and they have prior convictions for any crime. • Possession of an assault weapon, disguised gun, or “large capacity ammunition feeding device”	Criminal Possession of a weapon in the third degree can be found in Penal Code § 265.02.	Between 2 and 7 years in prison, and the defendant may be required to pay a fine.
Criminal Possession of a Weapon in the Fourth Degree (Class A misdemeanor)	Possession of a weapon in the fourth degree also uses many factors: For example:  • Possession of an electronic dart gun, electronic, stun gun, switchblade knife, metal knuckle knife, among others. • Possession of a rifle, shotgun, antique firearm, black powder rifle, among others and has been convicted of a felony or serious offense	Criminal Possession of a weapon in the fourth degree can be found in Penal Code § 265.01.	Up to a one year prison sentence, up to $1,000 in fines, or up to 3 years in probation.

Specific NYC Weapons Charges

Although there are some exemptions, the New York City Administrative Code prohibits the following in Manhattan, the Bronx, Queens, Staten Island, and Brooklyn:

• Possession of a box cutter (as defined in §10-134.1) in a public place by anyone less than 21 years of age
• Possession of  a box cutter on school premises (as defined in  §10-134.1) by anyone less than 22 years of age
• Possessing, or carrying a knife (as defined in §10-133) with a blade of 4 inches or more while in any public place, street, or park. This applies to anyone regardless of age.
• Wearing or carrying any knife in plain sight, regardless of whether the blade is exposed or not. This applies to everyone while in any public place, street or park, regardless of age.
• Possession of an electronic stun gun as defined in §10-135
• Firing or discharging any gun, pistol, rifle, or other such firearm described in §10-131
• Possession of air pistols and air rifles, as defined in §10-131
• Possession, use or attempted use of any toy or imitation firearm that cannot be easily differentiated from a real one
• Carrying or possessing a loaded rifle or shotgun anywhere in public
• Carrying or possessing an unloaded rifle or shotgun anywhere in public
• Possession of a “deceptively colored firearm, rifle, shotgun, or assault weapon” as defined in §10-131

Section 464 of the New York City Charter also makes it illegal for anyone less than 21 years of age to carry or otherwise possess any firearm in the five boroughs without a valid license or permit. In this context, a “firearm” may be a rifle, shotgun, or assault weapon, as defined in the city’s Administrative Code. It may also be a machine gun, as described in Section 265 of the New York State Penal Law.

Violation of these provisions are generally classified as misdemeanors. Punishments upon conviction include fines and/or imprisonment for periods specified by law. Depending on the circumstances, however, you may also be charged with one of the offenses detailed below.

Criminal Possession of a Weapon in the First Degree

Someone can be accused of this crime if he or she has any explosive substance and intends to use it to hurt or kill someone else. They may also be accused of this offense if they intend to use the explosive(s) to damage or destroy someone else’s property.  

Another situation in which police will charge someone with this offense is if it is determined that they have at least 10 firearms. In this context, a firearm could be a pistol, a revolver, or an assault weapon. It could also be a shotgun or rifle with certain characteristics. 

Criminal possession of a weapon in the first degree is a Class B felony. A person found guilty of this crime faces between 5 and  25 years in prison.

Criminal Possession of a Weapon in the Second Degree

In New York City, there are several scenarios in which someone could be charged with this offense. 

The first is if someone has one of the following intending to commit a crime against another person: a machine gun, loaded firearm, or “disguised gun” as defined by law. The second is if they have at least five firearms. The third is if they have any loaded firearm.

There is one exception:  The stipulation regarding any loaded firearm does not apply if the firearm is not an assault rifle, and the person has it while at home or at their business. 

Because this is a Class C felony, the sentence upon conviction is between 3.5 and 15 years in prison.

Criminal Possession of a Weapon in the Third Degree

This is a much broader charge, based on 10 different factors. Key elements used to determine guilt include, but are not limited to, prior convictions, type of firearm, and weapon type. 

Other aspects taken into consideration are the number of firearms someone has, and whether someone has a loaded or unloaded firearm while committing certain felonies. Any modifications made to certain firearms are also considered. 

Someone could be found guilty of this offense if, for example:

• The state proves that they committed a crime defined as criminal possession of a weapon in the fourth degree and they have prior convictions for any crime.
• There is sufficient proof that they have an assault weapon. 
• They have a “large capacity ammunition feeding device,” as defined by law.

This is a Class D felony carrying a prison sentence between 2 and 7 years.

Criminal Possession of a Weapon in the Fourth Degree

This Class A misdemeanor is also an expansive charge, based on numerous factors. Proof of possession of any of the following may result in conviction: 

• firearm
• electronic dart gun
• electronic stun gun
• switchblade knife 
• pilum ballistic knife 
• metal knuckle knife
• cane sword 
• billy, blackjack 
• bludgeon 
• plastic knuckles 
• metal knuckles
• chuka stick
• sand bag
• sandclub 
• wrist-brace type slingshot or
• slungshot 
• shirken 
• “Kung Fu star”

A person may also be found guilty of this charge if they are not a U.S. citizen and have any “dangerous or deadly weapon.” Possessing a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm after a prior conviction on a felony or serious offense may also result in conviction on this charge.

The maximum prison sentence associated with a Class A misdemeanor conviction is 364 days.

Criminal Possession of a Firearm

This occurs under New York law when someone has any firearm and/or fails to register a firearm in accordance with applicable laws. The following are legally defined as firearms in New York City: a pistol, a revolver, an assault weapon, or a shotgun or rifle with certain characteristics. Criminal possession of a firearm is a Class E felony. 

Criminal Possession of a Weapon on School Grounds

With certain exceptions, someone on school property may be charged with this offense when he or she knowingly possesses a rifle, shotgun, or firearm. School property is generally defined as school, college, or university buildings or campuses. Someone may also be charged with this offense if they knowingly have a rifle, shotgun, or firearm while on a school bus.

An exception applies if the person who deliberately has any such item on school property or on a school bus has written permission from the school. However, schools are not allowed to grant authorization to anyone solely employed as a teacher or school administrator. Schools are also prohibited from granting this authority to other civilian employees.

This is a Class E felony.

Aggravated Criminal Possession of a Weapon

A person charged with criminal possession of a weapon in the second degree may also be charged with this offense if they also committed any violent or drug trafficking felony. 

Aggravated criminal possession of a weapon is a Class C felony.

Unlawful Possession of Weapons by Persons Under Sixteen

Section 265.05 of the New York Penal Law prohibits anyone who is not yet 16 from possessing certain items. These include  air-guns, spring-guns, or other “instruments or weapons” with similar propulsion mechanisms. 

Guns or instruments that use loaded or blank cartridges, those cartridges or ammunition are also included. Dangerous knives are included as well.

An exception is made when someone who has any of the items detailed above also holds a valid hunting license or permit issued in accordance with applicable laws.

Someone found guilty of this offense will be treated as a juvenile delinquent.

Unlawful Possession of a Weapon at an Airport

Section 265.01-e of the New York Penal Law bars possession of a firearm, rifle, or shotgun in a “sensitive location” by someone who knows or should know it is a sensitive location. 

In this context, an airport is classified as a sensitive location. Accordingly, someone may be found guilty of this offense if he or she deliberately has a firearm, rifle or shotgun while at an airport such as JFK or La Guardia Airport.

Certain law enforcement, police, and peace officers are exempt from this provision. Retired police officers, members of the U.S. Armed Forces on active duty, and certain security guards are also exempt.

Criminal possession of a firearm, rifle, or shotgun at a sensitive location is a Class E felony.

Types of Objects Considered Weapons in NYC

The following objects are classified as weapons under the New York City Administrative Code and New York City Charter. 

• box cutters
• knives with blades measuring at least 4 inches
• electronic stun guns
• firearms – namely  rifles, shotguns, or assault weapons, as defined in the city’s Administrative Code, or machine guns, as described in Section 265 of the New York State Penal Law

Other items defined as weapons in accordance with New York State Penal Law are also classified as weapons in New York City.

Assault Weapons Charges in NYC

Section 10-301 of the New York City Administrative Code defines an assault weapon as any shotgun with a revolving-cylinder magazine.

Semiautomatic centerfire or rimfire rifles or semi-automatic shotguns with certain characteristics are also classified as assault weapons. These often have:

• folding or telescoping stocks or no stocks
• exaggerated pistol grips
• bayonet mounts
• flash suppressors or barrels specifically designed to accommodate them
• barrel shrouds, and/or 
• grenade launchers 

Any other changes that make the shotgun compatible with military rather than sporting uses also result in the classification of the firearm as an assault weapon.

Possessing or getting rid of an assault weapon is illegal in New York City. With some exceptions, a person convicted of this crime faces criminal and/or civil penalties. 

Punishments include fines of up to $5,000 and/or a year in prison for each assault weapon that someone has or gets rid. Civil penalties top out at $25,000 per assault weapon.

Weapons Possession and Juveniles in NYC

As detailed above, Section 464 of the New York City Charter makes it illegal for anyone less than 21 years of age to carry or otherwise possess any firearm in the five boroughs without a valid license or permit.

This does not apply to members of the New York National Guard or U.S. military, police officers, and peace officers. Certain defense contractors and authorized participants in special events are also exempt.

A violation of this section is a misdemeanor punishable by up to one year in prison, a fine of up to $10,000 or both.

Federal Implications of Transporting Firearms Across State Lines

When it comes to transporting firearms across state lines, federal law trumps state and local laws in certain circumstances. Specifically, it allows anyone who can legally transport, ship, or receive firearms to transport firearms for lawful purposes. 

However, this only applies when the person transporting the firearm can legally possess and carry the firearms at both the point of departure and the destination.

That is important, because New York state law prohibits the transportation or shipment of any machine gun, assault weapon, or “disguised gun.” New York state law also bars the transport or shipment of more than five firearms as merchandise. 

Anyone who violates these stipulations will be charged with a Class D felony. In addition, transportation or shipment of any firearm other than an assault rifle as merchandise is classified as a Class A misdemeanor.

Actual vs. Constructive Possession in NYC

Actual possession occurs when authorities find that someone has physical custody or control of a weapon, or that it is close by so they have immediate access to it.

Constructive possession occurs when authorities find a weapon in a location where at least one person has control over it.

Repercussions of a Felony Weapons Conviction

A felony weapon conviction in New York has serious ramifications. In addition to the loss of freedom for years, someone found guilty of weapons crimes also loses several rights. These include the right to vote while incarcerated, and the right to buy, use or possess firearms. They will also lose the right to serve on a jury and eligibility for federally funded housing.

Additional consequences may include deportation if the convicted person is not a U.S. citizen, and disciplinary action by a licensing board when he or she holds a professional license.

Although restoration of some of these rights may be possible, a conviction may still have lingering effects. For example, it may be difficult to find work or housing.

Gun Possession and NYC Orders of Protection

In general, there are two types of orders of protection in New York: temporary and final.

When someone obtains a temporary order of protection, the judge should ensure that the abuser’s guns are confiscated and their gun license is suspended in certain circumstances. These include a judicial finding that there is a “substantial risk” that the abuser may use or threaten to use a gun against the person who has obtained the order, anyone on it, or anyone under their protection (such as their children). 

The judge should also suspend a gun license if the abuser has a prior conviction for a violent felony offense, or a prior conviction for stalking. 

Lastly, this applies when the judge finds that the abuser:

• deliberately violated an order of protection in the past and seriously hurt the victim in the process 
• used or threatened to use a deadly weapon or dangerous instrument as defined by law, or
• his/her actions constituted  a violent felony offense

When someone obtains a final order of protection, the judge is should take the actions detailed above based on a finding that either of the following are true:

• There is a “substantial risk” that the abuser may use or threaten to use a gun against the person who has obtained the order, anyone on it, or anyone under their protection.
• Someone got the final order of protection after the abuser seriously injured him or her, used or threatened to use a deadly weapon or dangerous instrument as defined by law, or did something classified as a violent felony offense

Why You Need an Attorney

For the average person, New York’s weapons laws are complicated and confusing. Being convicted of any of these charges may have serious, long-lasting consequences ranging from the imposition of fines to imprisonment, and the loss of basic rights. 

This is why it is so important to have a criminal defense attorney fighting for someone facing these charges. A dedicated New York criminal weapons attorney will not only craft a strategy to fight these charges, but also guide the accused throughout the legal process. 

At Rosenblum Law, we will fight to get your sentence reduced, or even get the charges dropped should the circumstances warrant. We won’t just accept the first offer the prosecutor makes. 

If your case goes to trial, we will offer the best representation possible. By contrast, a public defender is often overloaded with cases and will be unable to provide this same level of specialized support. Plus, once a defendant has been assigned a public defender, it is very difficult to replace them, even if they feel their interests are not being protected.

Call Rosenblum Law today. We offer flexible payment plans, and remote and in-person consultations.

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