gavel and cuffs

In New York: Weapons Are More Than Guns

4 Questions About NY Weapons Crimes and Possession

  • What are the common weapons possession crimes?

If someone possesses any item that has been defined or identified as a weapon under Section 265 of the New York Penal Law. Commonly this means the possession of firearms, knives, ammunition and ammunition devices. The seriousness of the charge depends on the type of weapon possessed, where the weapon was possessed and the manner in which it was used or possessed.

It should be noted that just about anything can be deemed a weapon depending on how it is used or possessed. As defined by the law a "dangerous instrument" is any instrument, article or substance, including a "vehicle", which is used, attempted to be used or threatened to be used, and is readily capable of causing death or other serious physical injuries. So virtually anything, depending on how it is used, can be deemed a weapon in New York State.

  • Will I Go to Jail for Possessing a Weapon?

If you own a handgun and live in New York you must have your gun properly registered and licensed. If you fail to do so your handgun is considered an illegal firearm which can subject you to arrest and criminal charges. A person who is convicted of possessing an illegal firearm can face a possible sentence with a mandatory minimum of 3 ½ years in state prison and be classified as a violent felony offender. Generally, if you are charged only with misdemeanor weapons possession, upon conviction you can be sentenced up to one year in jail.

  • Can I Be Charged with Possession Even If No Weapon was Found on Me?

A person who is found in possession of a firearm can be charged with weapons possession even if they are not the owner. If you are holding it, you possess it. Even if someone gave it to you to hold for them temporarily to give to someone else or you found it, you can be charged with weapons possession if the arresting officer finds the gun on you. Under New York law, even though they did not actually possess the weapon when it was recovered by the police. The two legal principles which allow this are "Constructive Possession" and the “Weapons Presumption.” A person can constructively possess a firearm when that person exercises a level of control over the area where the firearm was found and the control was sufficient to give the person the ability to use or dispose of the firearm (finding a gun in the trunk of a car). The weapons presumption allows multiple individuals to be charged with possessing a single firearm (finding a gun inside a car occupied by multiple people).

  • What Must a Person Tell Their Attorney About the Arrest?

A client must tell their attorney everything that happened during the initial police encounter. Determining the reasons that the police stopped or approached the individual who was arrested; the circumstances surrounding the search and retrieval of the weapon; and what if anything the client said in response to the officer’s questions, are all crucial facts that will help the defense attorney determine if there were any violations of the client’s rights and if any court hearings are necessary.


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Stephen J. Riebling, Jr. is a criminal defense attorney and partner with Riebling & Payton, PLLC, located in Westchester County, NY and has been practicing for more than 23 years. To learn more about Mr. Riebling and the firm, visit Riebling & Payton, PLLC at www.WestchesterDefenseAttorney.com.

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