call for a free consultation 212-300-5196


Todd Spodek - Mentioned in The Media

watch more videos

New York Penal Code 265.09: Criminal use of a firearm in the first degree

Using a gun in the process of committing a crime in New York will push the offense into the State’s mandatory minimum sentencing laws. These are extremely serious felony charges with harsh sentences. Both law enforcement and the court system take these crimes extremely seriously and are not inclined to be lenient with anyone who breaks this code. It is important to clearly understand the terms used and exactly what this code states about criminal use of a firearm in the first degree.

What New York penal code 265.09 States
This code states that a person is guilty of committing an offense against penal code 265.09 if that person knowingly possesses a loaded firearm while committing any class B violent felony offense or crime. Several aspects must be met for charges to be filed. The person must know that they have a loaded firearm in their possession. The firearm must be loaded and capable of firing a shot.

Class B violent felonies can include:
– assault, burglary, rape, or robbery all in the first degree
criminal sale of a firearm in the first degree
criminal possession of a weapon in the first degree
manslaughter or aggravated manslaughter in the first degree

The following types of weapons are considered firearms in New York:
– pistols
– revolvers
– rifles
– shotguns
– assault weapons

An example of a violation of Penal Code 265.09
Suppose someone broke into another person’s home and attacked the person living there. They knew they had a loaded handgun in their pocket. They could be charged with criminal use of a firearm in the first degree even if they never used the gun or even pulled it out of their pocket.

There are several different potential defenses against this charge. If someone placed a loaded gun in someone else’s possessions without them knowing, then this charge could potentially be dropped. If the weapon was not loaded or was an antique firearm (which is exempt), the charges would have to change. Finally, if a person is just carrying a loaded firearm but is not committing a crime, there could be other charges but criminal use is not one of them.

Minimum Sentences
This is one of the few crimes where conviction means a mandatory minimum amount of time in prison. Where judges normally have some discretion in the sentencing phase of a trial, this is not one of those times.. This is considered a class B violent felony. The mandatory minimum time in prison for someone who has been convicted is 5 years in state prison. In addition to prison time, they could also be forced to pay a substantial fine of double what their profit was or $5,000, whichever is larger. Finally, this certainly will not be the only charge. There could also be the criminal charge for the act itself, and a charge for possession of a firearm. The penalties will add up very quickly and a conviction could mean many years in prison.

Due to the very serious nature of this crime and the fact there are mandated minimum sentences involved, the first thing someone charged with this crime should do is hire a New York defense attorney that has experience with these types of cases. Never try to handle something this serious on your own. An experienced defense attorney will be able to look at all the details of your case and make sure you understand your legal rights as well as defend you by all possible means.

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.

Request Free Consultation

Please fill out the form below to receive a free consultation, we will respond to your inquiry within 24-hours guaranteed.

  • By filling out our form, you give us permission to email you, and communicate with you via e-mail, in the future through email marketing campaigns.
Call Now Button