New York Penal Code 265.08: Criminal use of a firearm in the second degree

New York Penal Code 265.08: Criminal use of a firearm in the second degree

As per the New York Penal Code, it is illegal for a person to have a deadly weapon while committing another separate felony. Those who are caught with a weapon in such a circumstance are charged with criminal use of a firearm in the second degree. As a part of the statute, a prosecutor must prove that a person committed at least a class C violent felony, and that they were either in possession of a deadly weapon or used an object that resembled one during the commission of the violent act.

Example of Criminal Use of a Firearm in the Second Degree

If a person were to break into a house with the intent to rob it, and then was caught by the police with a loaded firearm in their pocket, then they could be charged with criminal use of a firearm in the second degree, separate from any other charges related to their break-in. It is important to note that the firearm does not need to be used or referred to during an illegal act for a prosecutor to still be able to seek charges. As long as there is evidence that a person had a firearm on their person while committing the act, then it is enough for the charges to be laid against them.

Defending Against Criminal Use of a Firearm in the Second Degree

Since criminal use of a firearm in the second degree hinges on the person holding either a loaded deadly weapon or an object that resembles a firearm, NYC criminal lawyers will seek to prove that the defendant had neither. If there is no proof that the item they were holding actually resembled a firearm, or that there was no firearm to begin with, then a prosecutor will not be able to effectively pursue these charges.

It is worth keeping in mind that the statute does provide additional details regarding what constitutes a “deadly weapon.” Under the New York Penal Code, this includes any loaded weapon that can potentially cause death or serious injury, knives, daggers, billy clubs, and metal knuckles, in addition to several other variants. As long as the items found on a person do not fall under any of these general categories, then they should be able to effectively counter these charges in court.

One of the central components of a criminal use of a firearm charge is that the person possessing the firearm had also committed a separate class C violent felony. If a person can successfully defend against other related charges in court, then they will also be protecting themselves from these charges.

Sentencing for Criminal Use of a Firearm in the Second Degree

Anyone found guilty of criminal use of a firearm in the second degree can be sentenced to up to 15 years in prison. Since the charge is considered a class C violent felony, and the charges hinges on a previous violent felony charge, the minimum prison sentence will be at least seven years. In addition, there is a good chance that a person released from prison will then be subjected to an extended period of post-release supervision.

Criminal use of a firearm in the second degree can have serious consequences, especially since it is legally considered to be a violent felony. It is for this reason that it’s highly recommended to seek out a lawyer for representation, as they can potentially get these charges dropped or reduced.

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