Criminal Possession of a Weapon in New York City – Criminal Use of a Firearm in the Second Degree

In New York City, every gun-related charge is a serious matter that can upend your life for years to come. This is especially true when it comes to criminal use of a firearm in the second degree, as this offense always comes coupled with an additional violent felony charge.

It is never a good idea to face these charges alone. With the support of skilled legal counsel, you might be able to avoid a conviction on both the weapons charge and the underlying violent felony. Reach out today to learn more.

Understanding Criminal Use of a Firearm in the Second Degree

Criminal Use of a Firearm in the Second Degree is always charged with another serious felony, compounding the severity of the situation. This offense is charged in a situation where the person has been accused of committing a separate class C violent felony, and

• the person either is in possession of a loaded, operable gun; or
• the person displays what appears to be a gun in the commission of the underlying felony.

This offense is known as a “strict liability” crime. In essence, this means that the prosecutor does not need to prove any intent or desire on the part of the person arrested. If the person is arrested for a class C violent felony and the police discover the person is in possession of a loaded, working gun, that person can be found guilty. Similarly, if a person is arrested for a class C violent felony, and during the course of that felony, the person displays what appears to be a gun, then the person can be found guilty. The phrase “appears to be” can apply to a working gun, a non-working gun that has no obvious defect to it, or an imitation gun which a reasonable person would think is real under the circumstances. In any of those situations, merely displaying the object is sufficient for conviction.

If charged with Criminal Use of a Firearm in the Second Degree, the defendant is also charged with at least another C felony – which means the minimum prison sentence for this offense is 3.5 years in prison, and the maximum sentence is 15 years.

If a person is arrested and a gun is recovered from that person, the NYPD will have the gun tested for DNA evidence. Sometimes, DNA evidence presents a scientific link between the person arrested and the offense charged. But sometimes DNA found on a gun will exclude the person arrested as a match. And sometimes ether no DNA is found, or the results are inconclusive. If you have been charged with gun possession or use in New York, having an attorney who knows not only the details of gun laws, but also how to read and analyze DNA test results is extremely important.

Collateral Consequences of a Conviction

The risk of jail time and fines is not the only way a guilty verdict might impact your life. A conviction for second-degree gun possession can also lead to serious collateral consequences. You could face long-term obstacles to employment, especially in industries requiring background checks or professional licenses. Housing opportunities can also be limited due to public housing bans or landlord restrictions. A conviction can also affect your immigration status, possibly resulting in deportation. You can also lose valuable rights following a felony conviction, including the right to vote or own a firearm.

Potential Defenses in Second‑Degree Gun Possession Cases

When facing a charge of second‑degree possession of a firearm by a felon in New York City, you could have a number of viable defense strategies to choose from. Our firm could advise you to pursue any of the following.

Constitutional Violations

One of the most common defense strategies focuses on constitutional errors by law enforcement. If police conducted an unreasonable search or seizure without a valid warrant, your attorney may be able to suppress the illegally seized evidence at trial. This might even include any proof that you had a gun in your possession at all.

Lack of Evidence

Prosecutors must prove beyond a reasonable doubt that you possessed a firearm during the commission of a felony. This is a high burden of proof that prosecutors might not always be able to meet. Your attorney can scrutinize the evidence against you and focus on how weak the case is.

No Possession of a Firearm

Not every object that looks like a gun is a firearm, and mere proximity to a weapon isn’t enough for conviction. If you never had actual or constructive possession, this offense does not apply to you and it negates a critical element. This also applies when what you were holding or seen with merely appeared to be a gun but was actually a replica or harmless item.

Innocent of the Underlying Charge

Second‑degree possession by a felon requires proof of a qualifying prior felony conviction. If your attorney can show you never committed that underlying charge, the prosecution can’t convict you of the gun charge. It is possible that you could be prosecuted for other, lesser gun-related offenses depending on the circumstances.

Put Your Trust in the Hands of a NYC Lawyer if Charged With a 2nd Degree Criminal Use of a Firearm

Being accused of a firearms charge is a serious matter, but the good news is that you are entitled to a vigorous defense. Our firm has faced down the prosecution in these cases and helped our clients avoid a conviction. We look forward to the opportunity to do the same in your case.

The experienced weapons and firearms attorneys at the Law Offices of Jeffrey Lichtman have been defending people charged with gun possession and use for decades with fantastic results. Call today to speak to us about your case.