White Plains Gun & Weapon Crime Attorney
Westchester County Gun Laws
The two most common types of gun crimes in New York are:
- Possession of an unlicensed firearm - Mere possession of an unlicensed loaded firearm outside your home or place of business is a felony and carries a maximum sentence of three and half years if convicted. If you possess an unlicensed loaded firearm in your home or place of business it is a misdemeanor and carries a maximum sentence of up to one year in jail.
- Possession of an assault weapon - If you possess an assault weapon anywhere, regardless if it is loaded or not, it’s a felony.
If you are charged with criminal possession of a weapon in Westchester County, Bronx County, Rockland County, Orange County, Putnam County and Dutchess County your options are limited. You either accept responsibility, earn a criminal record and possibly go to jail, or you retain a skilled, aggressive and experienced Westchester County criminal defense lawyer who will vigorously protect your rights every step of the way.
New York Weapon Possession Charges
Whether you are charged with a misdemeanor for criminally possessing a switchblade knife or a gravity knife, or you are charged with a felony for criminally possessing a loaded gun, pistol, revolver, or another firearm outside your home or place of business without a permit, criminal possession of a weapon is a very serious criminal charge in New York.
Criminal Possession of a Weapon (Including Guns)
- Criminal Possession of a Weapon in the Fourth Degree (NY PL 265.01).
- Criminal Possession of a Weapon in the Third Degree (NY PL 265.02)
- Criminal Possession of a Weapon in the Second Degree (NY PL 265.03)
- Criminal Possession of a Weapon in the First Degree (NY PL 265.04)
New York’s SAFE Act
In 2013, New York state outright banned the possession of all firearms it classifies as “assault weapons.”
The state applies this category broadly. It can apply to:
- semi-automatic handguns
- semi-automatic rifles with detachable magazines
Furthermore, some features can alter a gun’s classification in New York. These features aren’t always relevant to the way the gun operates. Some of them are simply cosmetic.
New York can categorize your firearm as an assault weapon if it has:
- A pistol grip
- A barrel shroud
- A threaded barrel
- A flash suppressor
- A thumbhole stock
- A weight of over 50 ounces when unloaded
Residents who owned these weapons before the SAFE Act passed were forced to register them. According to the law, it is illegal for them or anyone else to acquire new assault weapons.
The SAFE Act’s official statute states:
"Assault weapon" means
(a) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least two of the following characteristics:
- a folding or telescoping stock;
- a pistol grip that protrudes conspicuously beneath the action of the weapon;
- a bayonet mount;
- a flash suppressor or threaded barrel designed to accommodate a flash suppressor;
(v) a grenade launcher; or
(b) a semiautomatic shotgun that has at least two of the following characteristics:
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a fixed magazine capacity in excess of five rounds;
(iv) an ability to accept a detachable magazine; or
(c) a semiautomatic pistol that has an ability to accept a detachable magazine . . .
The SAFE Act also introduced many other restrictions.
Anyone selling ammunition must register as an official dealer. Any unregistered, out-of-state ammunition dealer cannot ship to New York.
Organizations such as shooting ranges that aren’t official “dealers” must register as “Organizational Keepers of Ammunition.”
All retailers are also required to conduct background checks and keep a tight record of all their ammo sales.
Anyone who owns a simple pistol must now re-register every five years.
Private Sales Regulations
Because of the SAFE Act, most private sales are illegal. For one person to sell to another, they must go through a middleman. A licensed dealer handles the transaction for them.
It is still legal to sell or transfer your gun to some close family members, but even that allowance can be vague. It may not always be clear to the seller or buyer if they are breaking the law by accepting a family heirloom
Beyond its new restrictions, the SAFE Act has caused problems with enforcement. Some New York counties are rigid about the law, and they will throw the book at any violations. Others enforce it only when they find evidence of another crime.
The SAFE Act is complex and difficult to navigate. Citizens could easily believe that they were within their rights, only to discover that they accidentally broke the law. If you are facing charges for SAFE Act violations, our firm is here to fight for your rights.
The Extreme Risk Protection Order (ERPO) is often called the “Red Flag” law in New York. The state adopted this law on August 24, 2019. Ostensibly, the law is designed to help protect someone in mental decline. If someone is in danger of hurting themselves or others, another person can report them and get them help. This second person could be a friend, family member, mental health professional, or even a police officer.
This significant part of the law, § 6340, outlines who can file a report.
- (a) a police officer, as defined in section 1.20 of the criminal procedure law, or district attorney with jurisdiction in the county or city where the person against whom the order is sought resides;
- (b) a family or household member, as defined in subdivision two of section four hundred fifty-nine-a of the social services law, of the person against whom the order is sought;
- (c) a school administrator as defined in section eleven hundred twenty-five of the education law, or a school administrator's designee, of any school in which the person against whom the order is sought is currently enrolled or has been enrolled in the six months immediately preceding the filing of the petition; or
- (d) a licensed physician, licensed psychiatrist, licensed psychologist, registered nurse, licensed clinical social worker, certified clinical nurse specialist, certified nurse practitioner, licensed clinical marriage and family therapist, registered professional nurse, licensed master social worker or licensed mental health counselor who has treated the person against whom the order is sought in the six months immediately preceding the filing of the petition. For purposes of this article, a school administrator's designee shall be employed at the same school as the school administrator and shall be any of the following who has been designated in writing to file a petition with respect to the person against whom the order is sought: a school teacher, school guidance counselor, school psychologist, school social worker, school nurse, or other school personnel required to hold a teaching or administrative license or certificate, and full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate.
Unfortunately, New York has used the ERPO to further encroach on your gun rights. On June 6, 2022, Governor Kathy Hochul amended the law to include gun sales. Now, a mental health professional who has seen someone within six months can file a claim, limiting the other person’s gun rights. Because of the law’s wording, it’s possible that someone outside of the mental health community, such as a friend or neighbor, could also attempt to block your gun purchases.
Moreover, the law suggests that these decisions can be made without your involvement. You could visit a mental health professional for one session. During your interaction, you may misspeak, or the counselor could misinterpret you. From there, they can file on your behalf, and you suddenly find yourself unable to legally purchase a gun.
Our team is here to help protect everyone’s first amendment rights. If an overzealous person has incorrectly reported you as a danger, we can help prove this claim wrong. We can investigate your history, showing the courts a balanced, responsible citizen who deserves their Second Amendment Rights.
Contact a Westchester County Criminal Defense Lawyer
If you or someone you know has been charged with criminal possession of a weapon in Westchester County, Rockland County, Putnam County, Dutchess County, Orange County or Bronx County, it is absolutely vital that you seek legal representation right away. The lawyers at Proto, Sachs & Brown, LLP provide highly-skilled and aggressive criminal defense representation and will assist you right away in aggressively defending your charges of criminal possession of a weapon.
Contact us online or by telephone at (914) 840-5104 to speak with an aggressive and experienced criminal defense lawyer.