06 Jul 20

NY Penal Law § 265.11: Criminal Sale of a Firearm in the Third Degree

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Last Updated on: 5th August 2023, 03:51 pm

New York has some of the most severe weapons laws in the United States. Over two dozen offenses related to weapons and guns can be found in the New York Penal Code.  It is illegal under New York Penal Code § 265.03 to possess a machine gun, a loaded firearm, a disguised gun with the intent to use it in an unlawful manner.  Moreover, it is illegal under New York Penal Code § 265.04 to be in possession of any explosive substance with the intent to use it against another person, or to have 10 or more firearms in your possession.  You could be prosecuted under New York Penal Code 265:11 for criminal sale of a firearm in the third degree if you are not legally authorized to possess a firearm, and either you:

  1. sell, give, or exchange the firearm, or
  2. have the intent to sell it.

An Example

An undercover police officer was observing an area known for drug activity.  The officer saw two men emerge from a bar and walk over to a nearby vehicle.  One of the men opened the trunk of the car and, from the officer’s vantage point, it was clear that there were firearms inside.  The other man picked up an item that appeared to be a gun and turned it around in his hand several times to examine it.  He then put the item in his duffel bag.  The officer put the owner of the vehicle under arrest and charged him with criminal sale of a firearm in the third degree.  A search of the vehicle by investigators, backed by probable cause, revealed that the trunk did indeed contain firearms and the man was in the business of selling them illegally.  

Offenses that are Related

Criminal possession of a weapon on school grounds: New York Penal Code § 265.01-a

Criminal sale of a firearm in the first degree: New York Penal Code § 265.13

Possible Defenses

If the police discovered firearms during a search of your home or vehicle, one way to defend against a charge of criminal possession of a weapon in the fourth degree is to challenge the search that uncovered the weapon as unlawful. Pursuant to the law, in order to conduct a search, whether it is a search of your car, apartment or office, the police must demonstrate that they had probable cause to do so. If it is determined that the search was unlawful, anything which the search produced, including firearms that you were not authorized to have in your possession, would be inadmissible in court and your case would likely be dismissed.

On top of that, if you are able to challenge any of the other elements of the crime, then you would be able to weaken the prosecutor’s case. For example, the prosecutor would have to demonstrate not only that you possessed a prohibited weapon, but also that you had the intent to sell it to someone.

The Sentence

Because criminal sale of a firearm in the third degree is categorized as a class D felony, if you are convicted, the judge could sentence you to up to 7 years in prison. The final determination on the length of your prison sentence will depend on factors such as your prior criminal record. If you have been convicted of a felony in the past, your sentence will be longer than if this is your first offense. Additionally, there may be financial consequences to a criminal sale of a firearm in the third degree conviction. The judge may require you to pay a fine, and you will have to pay various fees associated with being convicted of a crime in New York.