New York Penal Code §265.01(b)
If you’re reading this on our website, it’s because you-or someone you know-might be facing charges for violating New York Penal Code §265.01(b). This penal code criminalizes the possession of a firearm without a valid license to possess the firearm. Under New York state law, this charge can lead to serious Class E felony. The consequences of this include potential prison time, hefty fines, and a lifelong criminal record. In NYC, there is no such thing as a “minor” firearm charge-one slip-up or misunderstanding can ruin your life. At Spodek Law Group P.C., our goal is to protect you from any potential convictions. We use over 50 years of combined criminal defense experience to deliver the best possible outcome.
Federal Overlap: Double Jeopardy and the “Separate Sovereigns” Doctrine
Many people assume that facing a charge under New York Penal Code §265.01(b) means their only battle is with the state. Unfortunately, that’s not always the case. The moment your firearm offense hints at interstate involvement, or triggers concerns about drug trafficking, terrorism, or organized crime, the federal government can get involved. You risk being indicted under statutes like 18 U.S.C. §922(g), placing you in the crosshairs of the U.S. Department of Justice.
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Here’s the nuance: the Constitution prohibits “double jeopardy,” but only if a single sovereign tries to prosecute you twice for the same crime. Under the “separate sovereigns” doctrine, recognized by the Supreme Court in Heath v. Alabama, 474 U.S. 82, 88 (1985), both federal and state governments can prosecute the same underlying conduct if they identify a separate interest to protect. In this case, you're violating both state and federal laws. In other words, beating one set of charges doesn’t necessarily mean you’re off the hook for the other. Understanding how-and when-federal charges might be triggered, and crafting a cohesive strategy to handle both, is vital. This is precisely why we emphasize a holistic approach at Spodek Law Group P.C.: we look at your exposure across jurisdictions, so there are no surprises down the line.
Sentencing Guidelines: State vs. Federal Realities
New York’s sentencing structure for a Class E felony includes up to four years of incarceration, fines, probation, and other penalties. But if your case goes federal, you are subject to Federal Sentencing Guidelines, which, even after United States v. Booker, 543 U.S. 220 (2005), are matter a lot when it comes to sentencing for judges. Factors like prior convictions, firearm enhancements, and accusations of using a weapon “in furtherance” of another offense, such as drug trafficking (18 U.S.C. §924(c)), can escalate your case into a multi-year sentence in a federal penitentiary.
Exploring Multiple Scenarios
At Spodek Law Group P.C., we don’t believe in a “one size fits all” approach to criminal defense. Instead, we create a customized legal plan, we take into account your life, and pick apart the prosecution’s case. Here are some common-but powerful-defense strategies we consider before deciding on a final plan:
- Illegality of the Search or Seizure
We see countless instances where law enforcement agents step outside legal boundaries, they go through your vehicle, your bag, or even your home without proper probable cause or a valid warrant. If your firearm was discovered through an unconstitutional search (see Mapp v. Ohio, 367 U.S. 643), we will look to suppress the evidence and potentially get your charges dismissed outright. Imagine a situation where an officer cites “furtive movements,” but dashcam footage from the office shows nothing of the sort-that kind of discrepancy can unravel the prosecution’s entire case. This is something we can use to win the case. We can secure your freedom from the charges. - Lack of Knowledge or Constructive Possession
Under Penal Code §265.01(b), the prosecutors have to prove you knowingly possessed the firearm. If you borrowed a friend’s car-and you were unaware it contained a concealed weapon-you could lack the necessary mental state to be found guilty - you didn't intentionally have possession of the weapon. We investigate text messages, interview witnesses, and analyze timelines to confirm you had no clue the firearm was there. This approach can convince a prosecutor to reduce or dismiss charges when it becomes clear you were an unknowing bystander in someone else’s bad decision. If the case goes to trial, it's likely a jury will vindicate you of the charges. - Belief in Lawful Possession
People move to New York all the time-military families, business professionals, from states where gun licenses are more easily obtained. If you didn’t realize your out-of-state permit wasn’t valid here, we can present evidence of your good-faith mistake. This won’t always be a sure shot, but it can tip the scales in negotiations by showing there was no deliberate intent to break the law, which may result in a more favorable plea or sentencing outcome. - Necessity or Self-Defense
If you used or possessed a gun in an emergency-for example, deterring a violent intruder-our criminal attorneys can argue necessity or self-defense. This defense requires serious documentation: 911 calls, surveillance footage, or witness statements showing the threat you faced. If you felt your life was on the line, we’ll do everything possible to highlight that you acted out of fear, not criminal intent. This was about self-defense, and your right to protect your life. - Duress or Coercion
If you were intimidated by a gang member or abusive partner - and this led you into holding onto a firearm. If you can prove you faced an imminent threat to your safety, you may have a valid defense. In this situation, we will go into text messages, phone call recordings, or prior restraining orders to illustrate the severity of the threat and present a credible argument that you had no realistic choice but to comply. - Entrapment
If undercover police or informants coerced you into possessing a firearm you would never have otherwise touched, you might have a valid entrapment defense. This situation often arises in sting operations gone overboard, where law enforcement crosses the line into manufacturing crime. - Federal vs. State Plea Options
Sometimes, the best defense strategy requires thinking tactically about which jurisdiction you’d prefer. In certain instances, a plea deal in state court might help you avoid the harsher outcomes that come with federal mandatory minimum sentences. Conversely, if the federal side appears more willing to negotiate, we might steer your case in that direction. The objective is always the same: get you the best deal, or if needed, prep for trial without hesitation.
Who We Are, and Why We Can Help You
At Spodek Law Group P.C., we’ve built a reputation for taking on the toughest cases nationwide-ones other law firms deemed unwinnable-and winning them. Our managing partner, Todd Spodek, is a second-generation criminal defense lawyer who famously represented Anna Delvey (a.k.a. Anna Sorokin), whose acts became a sensation on Netflix’s “Inventing Anna" show. We’ve also been involved in high-profile matters like the Ghislaine Maxwell mistrial controversy. Media outlets from the New York Post to Fox 5 often call us for our insights, reflecting our standing in both the local and national legal arenas.
At the Spodek Law Group P.C., we pride ourselves on offering a white-glove experience, which means 24/7 availability, a completely digital client portal to track your case, and unparalleled attention to your case. Whether you’re in NYC or on the other side of the country, we stand ready to work for you-coast to coast. We only take on clients we believe we can help. If you’ve been charged under New York Penal Code §265.01(b) or suspect you might be facing federal firearms allegations, we can help you. We offer a risk-free consultation to assess your case, walk you through potential defenses. We are here to help you with your case.