Weapons Possession FAQs

JOEY JACKSON LAW, PLLC., provides brief answers here to some of the questions our attorneys are asked about weapons possession in New York. For legal advice and representation, contact our highly skilled defense attorneys in New York online or by calling 833-563-9522.

What are the common weapons possession crimes?

The charge of criminal possession of a weapon can be a misdemeanor or a felony. A person can be charged with weapons possession if they possess any item that has been defined or identified as a weapon under Section 265 of the Penal Law. The most common weapons possession charges are for the possession of firearms, knives, ammunition and ammunition devices. If you are charged with weapons possession, the seriousness of the charge depends on the type of weapon possessed, the location where the weapon was possessed and the manner in which it was used or possessed.

Recently, the illegal possession of a firearm is the most common crime charged for weapon possession cases. Firearm offenses are one of the most serious offenses in New York State under the New York State Penal Law.

Additionally, under the laws of New York, just about anything can be deemed a weapon depending on how it is used or possessed. The reason for this is because the Penal Law defines “dangerous instrument” as any instrument, article or substance, including a “vehicle”, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injuries.” For example, a writing pen that is used to stab and injure somebody can be deemed a weapon and you can be charged with misdemeanor weapons possession and assault. Similarly, a rolled up newspaper that is used to strike somebody and causes injury can be deemed a weapon, which will lead to weapons and assault charges. So virtually anything, depending on how it is used, can be deemed a weapon in New York state.

Another common weapons possession charge in New York state is for possessing some form of a knife, blade or a gravity knife or switchblade. Common items such as knives and box cutters purchased at hardware stores and flea markets have been frequently deemed by the police to be switchblades and gravity knives and have led to arrests of people who have them in their possession. We have represented clients who have been charged with these types of cases, and we have been able to demonstrate to the prosecution that the knives commonly purchased at hardware stores do not meet the legal definition of a switchblade or a gravity knife.

The experienced attorneys at JOEY JACKSON LAW, PLLC., have been successful in defending numerous clients who were facing weapons-related charges. Our knowledge of criminal law and procedures has resulted in resolving our client’s cases with dismissals of the charges or non-jail dispositions.

Will I go to jail for possessing a weapon?

If you own a handgun and live in New York, you must have your gun properly registered and licensed. If you fail to do so, your handgun is considered an illegal firearm that can subject you to arrest and criminal charges. New York’s weapons laws are geared towards reducing homicides and violent confrontations and therefore casts a large net prohibiting the carrying of concealed weapons or loaded firearms. For example, a person who is convicted of possessing an illegal firearm can face a potential sentence with a mandatory minimum of 3 ½  years in state prison and be classified as a violent felony offender.

Generally, if you are charged only with misdemeanor weapons possession, upon conviction you can be sentenced up to one year in jail. However, if you have no prior criminal record, based upon our experience, it is likely that you will receive some form of non-criminal and non-jail disposition of your case. If you are charged with misdemeanor weapons possession and there are aggravating factors such as being charged with other crimes (i.e. drug possession, assault, DWI, etc.), it will depend on the seriousness of the top charge and your prior criminal record.

Can I be charged with possessing a weapon where no weapon was found on me?

A person who is found in possession of a firearm can be charged with weapons possession even if they are not the owner. If you are holding it, you possess it. Even if someone gave it to you to hold for them temporarily to give to someone else or you found it, you can be charged with weapons possession if the arresting officer finds the gun on you. Under New York law, there are two legal concepts that allow a person to be charged with weapon possession even though they did not actually possess the weapon when it was recovered by the police. The first legal concept is called “constructive possession” where a person can be charged with possessing a firearm even if the firearm was not actually in their possession. A person can constructively possess a firearm when that person exercises a level of control over the area where the firearm was found and the control was sufficient to give the person the ability to use or dispose of the firearm. For example, if the car that you are driving is stopped and searched by the police and there is an illegal weapon found in the trunk, you can be charged with possessing that weapon even though you did not actually possess the weapon.

The second legal concept is called the weapons presumption, which allows the police and the prosecutors to charge multiple individuals with possessing a single firearm. If an illegal weapon is found inside of a car occupied by multiple people and no one claims ownership of the weapon, the law allows all of the individuals to be charged with possessing that one weapon. Under Section 265.15 of the Penal Law, the presence of the illegal weapon inside of the car is “presumptive evidence of its possession by all persons occupying such automobile” at the time the weapon is found. The presumption can be rebutted by an experienced attorney to demonstrate that the client clearly did not knowingly possess the weapon. There are a variety of different theories that can be used to prove that a client is not guilty of illegally possessing a weapon.

Although the police and prosecutors may be able to charge a person with weapons possession, the prosecution is still required to prove each and every element of the weapons possession charge beyond a reasonable doubt. The experienced criminal defense attorneys at JOEY JACKSON LAW, PLLC., can present evidence to rebut any presumptions as well as evidence to conflict with the prosecutor’s allegations and cast a reason to doubt the evidence presented.

What is the most important thing that a client must tell their attorney when they are charged with the weapon possession case?

A client must tell their attorney everything that happened during the initial police encounter. The most important part of the weapons possession case is determining the reason for the law enforcement officer either stopping or approaching the individual who was ultimately arrested. The next important thing for the client to tell his or her attorney is the circumstances surrounding the search and the retrieval of the weapon. The client must also tell the attorney exactly what the law enforcement officer told them was the reason for the stop and everything that the client said to the officers when answering their questions. These are crucial facts that your attorney will need in order to properly evaluate whether or not the officers followed the law and proper procedures when stopping, questioning, searching and retrieving the alleged illegal weapons.

If you or a loved one has been charged with any weapons offense, your first call should be to your family and your next call should be to the law firm of JOEY JACKSON LAW, PLLC. Contact us at 833-563-9522.