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NY Penal Law § 265.01-b: Criminal possession of a firearm

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 265.01-b: Criminal possession of a firearm

In New York, if you are in possession of a firearm, you could be convicted of a felony. The least serious firearm possession felony is criminal possession of a firearm. The prosecutor will charge you with this crime under New York Penal Code § 265.01-b if you possess a firearm and there are no aggravating factors that would make the offense a more serious felony. New York Penal Code § 265.00(3) lays out the definition of a firearm as:


  • any revolver or pistol
  • a shotgun with one or more barrels shorter than eighteen inches in length
  • a rifle with one or more barrels shorter than sixteen inches in length
  • any weapon derived from a shotgun or rifle
  • any assault weapon.


That said, an antique firearm is not a firearm according to the definition of the criminal possession of a firearm charge


An Example

A man is driving his car on a deserted street at 3:00 in the morning. A police officer observes the car and thinks that it is unusual for anyone to be driving around in that area at that hour. The police officer pulls the driver over and executes a pat down search of the man. The officer finds that the man has a firearm in his possession and places him under arrest. The man would not likely face any charges with criminal possession of a firearm.  This is because the police officer did not have probable cause to stop and search him. Sinde the search was unlawful, any firearms that the officer found would be inadmissible as evidence in court.


Offenses that are Related

Criminal possession of a weapon in the third degree: New York Penal Code § 265.02

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


Possible Defenses

If the police discovered the firearm during a search, one plausible defense against a charge of criminal possession of a firearm is to challenge the search as unlawful. If you are driving your car, for example, and the police stop you even though there was no indication that you had broken any laws such as speeding or driving while intoxicated, the stop would be unlawful. If, as a result of the stop, the police conducted a search of your vehicle and discovered a firearm, the prosecutor would have a hard time prosecuting you.  This is because the firearm would likely be deemed inadmissible since it was discovered as a result of an unlawful search.



Since criminal possession of a firearm is categorized as a class E felony, if you are convicted, the maximum possible prison sentence that you could receive is 4 years. Your sentence might also include a finem as well as a 5 year probation term. For the purpose of determining your sentence, the judge will take several factors into consideration.  These factors include the crime committed, the details of the crime, your criminal history and your personal background. If you are a first time offender, then your sentence will be a lot less severe than if you have a criminal history.



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