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

NEW YORK PENAL LAW SECTION 265.08 – 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.

The experienced New York 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 at (212) 581-1001 to speak to us about your case.