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New York Penal Code Section 265.01-b: Criminal Possession of a Firearm

New York Penal Code Section 265.01-b: Criminal Possession of a Firearm

If you are charged with criminal possession of a firearm anywhere in New York, you are likely to be charged with a class E felony. It doesn’t matter whether it’s a pistol, shotgun or a rifle. If you are knowingly in possession of a firearm without a license, you can be charged pursuant to New York Penal Law section 265.01-b. If you are lucky enough to be charged and found guilty of misdemeanor criminal possession of a firearm, you face up to 364 days in jail and a fine of up to $1,000. If you are found guilty of the class E felony, you face one to four years in prison and a fine not to exceed $5,000. Take notice that your failure to register a firearm can also be punished as a class E felony in New York. Also note that if you are in possession of a firearm in New York City, you will be needing a municipal license too.


As per New York Penal Law section 10.10, in order to possess a firearm, you must either have physical possession of it or otherwise be able to exercise dominion and control over it. Possession of a firearm can be actual or constructive. Actual possession would be having it on your person or inside of your belongings. Constructive possession might be when you are in a room with several other people and a gun is in that room.

Elements of the Offense

There is nothing mystical about proving a violation of section 265-b(1). Here are the elements of the crime that must be shown beyond a reasonable doubt:

  • That the defendant had a firearm in his or her possession on a date certain in a particular county in New York.
  • That the firearm was operable and able to discharge ammunition.

Traveling With a Firearm

Whether or not a gun was purchased in another state is irrelevant in New York. Whether a person was licensed to be in possession of a gun in another state is also irrelevant. The firearm need not be loaded either. How a firearm might be stored when traveling through New York doesn’t matter. A traveler in possession of a firearm in New York can still be charged with a class E felony. Even traveling through New York with a dismantled firearm is a criminal offense if the gun can be assembled again and fire ammunition.

Pleading Down

A first-time offender with no prior criminal history might be able to escape being branded as a convicted felon by virtue of pleading down to misdemeanor possession of a firearm. Any such plea agreement is within the discretion of the prosecutor. Special gun courts have even been set up around New York City for purposes of expediting firearm prosecutions. The State of New York and its various counties and municipalities want guns off of the street, and they’re very serious about that.

Bump Stock Note

On a side note, federal law now prohibits possession of any type of a bump stock anywhere in the United States. They are either to be destroyed or turned over to local law enforcement. Some states are buying them back from owners.

Whether you are accused of being in actual or constructive possession of a firearm anywhere in New York without a license, you have a serious legal problem. Don’t give any type of a written or oral confession. Don’t rely on any statements or promises from the police either. Remember that the prosecution has the burden of proving you guilty beyond a reasonable doubt. Contact our offices as soon as possible after your arrest on any gun charge to arrange for a consultation and case review. We are going to listen to you carefully and advise you of all of your legal options.

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