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NY Penal Law § 265.45: Safe Storage of Rifles, Shotguns, and Firearms

July 6, 2020 Federal Criminal Attorneys

Many of the most tragic accidents connected to the use of guns occurred because a gun was not securely stored. It is for this reason that New York has very detailed requirements as to how you must store your rifles, shotguns and other firearms. If you neglect to do this properly, you have committed a crime.  For purposes of this charge, the term “safe storage depository” refers to a safe or other secure container which, when locked, is incapable of being opened without the key, combination or other unlocking mechanism and is capable of preventing an unauthorized person from obtaining access to and possession of the weapon contained therein.  You could face a misdemeanor charge under New York Penal Code § 265.45 if you own a firearm, shotgun, or rifle and live with at least one other person who is not legally permitted to possess a firearm, shotgun or rifle and you fail to safely store and secure that weapon. 

It is important to note that, according to this section, a person who is not legally permitted to possess a firearm is a person who has been convicted of a crime included in subdivision one of section 370.15 of the criminal procedure law and such gun is possessed within five years from the later of the date of conviction or completion of sentence.

Two Examples

Jared invited Yande to his house after school.  He liked Yande and he wanted to impress her.  He told her that his father was a bail bondsman and that he had guns in the house.  Jared’s father kept a loaded firearm in a gun case in his bedroom.  Because the case has a complicated locking system and only he and his wife knew how to open quickly in case of an emergency, they kept it loaded to use for protection in case of a burglary. Jared, whose parents wouldn’t be home for at least another hour, brought the case into the living room.  He was surprised to find the case unlocked.  When he opened it, he could not fight the temptation to take the gun out and hold it in his hands.  He playfully pointed it at Yande, and accidentally pulled the trigger, shooting her in the shoulder at point blank range.  In this scenario, Jared’s father could not be prosecuted under the safe storage of rifles, shotguns and firearms statute.  Even though he kept a loaded gun in an unlocked case in a house where his child was living, Jared is not prohibited from accessing a firearm according to this statute.  He has never been convicted of a crime. 

Gustavo owns some hunting rifles that he keeps in a locker in his basement.  His brother, Manolo, has been out of prison on parole for 2 years, and one of his parole conditions is that he is not allowed to possess a firearm.  Manolo has had a tough time adjusting to life on the outside.  He can’t get a job.  Soon, he starts consorting with a group of guys who begin to conspire to burglarize the home of a very wealthy family.  Manolo has been staying with Gustavo for the last six months, so he knows about the hunting rifles.  He breaks into Gustavo’s gun locker and takes the rifles to go with his friends and commit the burglary.  In this scenario, unless Gustavo can prove that his locker was otherwise inaccessible to Manolo, he could face a safe storage of rifles, shotguns and firearms charge.  

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

To convict you on a safe storage of rifles, shotguns and firearms charge, the prosecutor has to demonstrate that the reason the unauthorized person in your home came into possession of your firearm was because you neglected to properly secure your firearm.  If the person somehow broke into your gun locker when it was indeed securely locked, that would be a plausible defense against this charge. 

The Sentence

Since a violation of the safe storage of rifles, shotguns and firearms charge is a class A misdemeanor, if convicted, you could be sentenced to up to 1 year in jail. Your sentence may also include a probation term of 3 years. 

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