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NY Penal Law § 265.09: Criminal use of a firearm in the first degree

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 265.09: Criminal use of a firearm in the first degree

two criminal use of a firearm charges can be found in the New York Penal Code. Both offenses  require that the defendant was in possession of a weapon while in the process of committing a violent felony offense. To be charged with criminal use of a firearm in the second degree, the predicate offense is a class C violent felony offense.  On the other hand, for criminal use of a firearm in the first degree, the predicate offense is a class B violent felony offense. On top of  demonstrating that you committed a class B violent felony offense, in order to be convicted of criminal use of a firearm in the first degree under New York Penal Code § 265.09, the prosecutor must also demonstrate the following:

 

  1. that you were in possession of a loaded, deadly weapon, or
  2. that you displayed an item that appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

 

For Example

The police apprehend a man who had just broken into a woman’s home.  During the break in, he injured the woman who was in the house. When they searched the man, the police discovered that he was carrying a loaded gun in his pocket. This man could be facing prosecution for burglary in the first degree, which is a class B felony. Aslo, because of the class B felony charge, the prosecutor would also grounds to charge him with criminal use of a firearm in the first degree.

 

Offenses that are Related

Criminal possession of a dangerous weapon in the first degree: New York Penal Code § 265.04

 

Possible Defenses

In order to successfully convict you of criminal use of a firearm in the first degree, the prosecutor must first demonstrate that you committed the underlying class B felony offense. If you are able to weaken or disprove any of the elements of the underlying felony offense, then the prosecutor will have great difficulty convicting you of that crime. as a result, he or she will not be able to prove that you committed the crime of criminal use of a firearm in the first degree.

 

The Sentence

Due to the fact that criminal use of a firearm in the second degree is categorized as a class B felony, if you are convicted, your possible sentence will be as much as 25 years in prison. The minimum prison sentence you could get is 10 years, since you will have already been convicted of a prior violent felony offense. After being released from prison, you may be obligated to serve a term of post-release supervision.

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