Rows of hand guns sitting on a table


Melanson Law Office P.C. Feb. 16, 2021

Following the shooting at Sandy Hook Elementary School and other nationwide incidents, the State of New York in 2013 tightened firearm possession and registration laws and elevated criminal possession violations from misdemeanors to the felony level.

You can now be charged with a Class E felony if you’re caught with an unregistered or illegal firearm, and, if convicted, may face up to four years in prison along with possible fines and probation.

If you’re facing a criminal offense charge for firearms possession in the Hudson Valley area, including the Kingston, Hudson, Highland, and Poughkeepsie communities, contact me at the Melanson Law Office.

I am attorney Tom Melanson, and in my two decades of legal experience, I have worked both as a prosecutor and now as a criminal defense attorney. I will aggressively represent you and protect all of your rights as you seek a favorable outcome.

NY Penal Law Section 265.01-b:Criminal Possession of a Firearm

New York Penal Law Section 265.01-b, criminal possession of a firearm resulting in a felony, is similar to Section 265.01(1), misdemeanor criminal possession. Prior to 265.01-b, you could be charged only with a misdemeanor. Under the updated law, you could be charged with either a felony or a misdemeanor.

After the passage of gun control reform measures in 2013, you can be found guilty of criminal possession if you own a firearm that has not been registered under subdivision 16-a of section 400.00 of the law, even if you possessed the rifle, shotgun, or pistol prior to the passage of the legislation.

Additionally, the SAFE Act of the same year required background checks for firearm purchases using the FBI’s National Instant Criminal Background Check System (NICS). It also banned assault weapons and limited gun magazine capacity to seven rounds, down from the previous ten. Further reforms in 2019 imposed a 30-day waiting period for certain individuals seeking firearm purchases.

Under the SAFE Act, you must be 21 years of age to purchase a firearm. You also must have no prior felony or serious offense convictions, and be of “good moral character” with a legally recognized reason for purchasing the weapon.

What Is a Firearm?

New York Penal Code Section 265.00(3) defines a firearm as:

  • Any pistol or revolver

  • A shotgun having one or more barrels less than 18 inches in length

  • A rifle having one or more barrels less than 16 inches in length

  • Any weapon made from a shotgun or rifle

  • An assault weapon

Antique firearms are excluded from the criminal possession definition.

What If I Bring a Legally RegisteredFirearm from Another State?

If you move to New York or travel through the state with a firearm — even if that firearm is legally registered in another state — you can be subject to a criminal possession charge if you haven’t registered the weapon under New York law.

Presumptive Ownership of a Firearm

In New York, a firearm found in an automobile is presumed to belong to all occupants in the vehicle, according to Section 265.13(3) of the penal law, unless the firearm is found on the person of one of the vehicle’s occupants.

Similarly, if a “machine gun” — defined as any weapon capable of continuous firing — is found in a home, then all occupants of the dwelling are presumed to own the firearm.

Loaded Firearms and Escalating Penalties

If you’re found with a firearm that is not registered and it is determined to be loaded, you can be charged with a violent felony offense with a minimum jail term of three and a half years, rising to a possible 15 years. The catch here is the definition of “loaded.” The weapon need not even have a loaded magazine inserted, nor even a round of ammunition in its chamber. The ammunition must merely be available for loading. If the weapon actually is loaded and ready to be fired, that escalates matters even more.

Charges get increasingly serious when other factors are present. For instance, if you have a criminal record, or are in possession of an explosive device, disguised gun, or more than five or ten weapons (depending on the circumstances), then the felony charges can become more severe. Criminal possession charges can also be applied for those under 16 years of age found with prohibited weapons, and also for those found in possession of weapons on school grounds.

Experienced New YorkCriminal Defense Attorney

If you have been arrested for criminal weapons possession — whether you’ve been charged or not — you need to take immediate action and set up the best defense team possible. The more quickly you act, the more avenues you have to exercise your rights.

With my previous experience as a prosecutor, I know the burdens placed on prosecutors to obtain a conviction, as well as the strategies they employ to overcome those hurdles. I can consult with you, hear your story, examine the facts, and come up with a strategy that offers the best potential for a favorable outcome. I will protect your rights and defend you aggressively against potential penalties, including prison time, fines, and probation.

If you’re in the Hudson Valley area, contact me immediately at the Melanson Law Office P.C.