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With all the shootings in the news over the past several years, the spotlight has been on gun control and tightening of gun laws. In 2006 New York passed what is known as the PLAX law, giving NY a reputation for having some of the toughest firearms possessions laws in the country. If you live in New York and have possession of a firearm, your gun must be licensed and registered. If it is not, that that is considered an illegal firearm. Law enforcement has made it a priority to get as many illegal firearms off the streets as possible. The court system backs up this effort with extremely tough sanctions against anyone who chooses to violate these laws.
New York penal code 265 addresses firearms issues, and 265.13 in particular addresses the criminal sale of a firearm in the first degree.
Penal Code 265.13 Broken Down
New York Penal Code 265.13 states that when an individual is not legally authorized to own a firearm and they sell, give, or exchange 10 firearms over a period of not more than one year, then this is considered a criminal sale of a firearm in the first degree.
– assault weapons
– machine guns, and more
Violation of this code is considered a class B felony, and can carry significant prison time in addition to fines and probation. If you do not have any previous convictions, the mandatory minimum prison sentence if convicted is 5 years. If you do have prior convictions, the mandatory minimum sentence is 10 years. The sentence itself can be anywhere from the minimum up to 25 years in state prison and could include a fine of not more than $30,000.
Gun shows have been a popular venue to buy and sell firearms. If a vendor at a gun show was selling guns he was not legally authorized to own and sold a minimum of 10 guns, than that would be a violation of NY Penal Code 265.13. He doesn’t have to sell them all at one time, or to just one person. The sale is cumulative over a year. If he went to ten different gun shows over a 12 month period and sold one gun at each show, that would be criminal sale in the first degree if he was not authorized to own the guns.
A good New York defense attorney would be able to look at all aspects of the case and determine the best defense to get the charges reduced or even dismissed. For example, if the gun owner could prove he was the legal owner of even some of the guns and that they were properly licensed and registered, that would mean that 265.13 was not a proper charge. Less than 10 guns would reduce the crime from first degree charges and that could have a significant impact on the sentencing.
In addition, there are specific laws regarding when law enforcement can stop and search someone, and a good defense attorney will be able to use any violations of those rules in their defense.
Trafficking in illegal firearms is a very serious offense, and both law enforcement and the court system is not going to look the other way if someone gets caught. The state of New York is especially vigilante when trying to keep the public safe from criminal activity involving firearms. If charged, the most important thing to do is contact an attorney as soon as possible.
New York Penal Code 265.11: Criminal sale of a firearm in the third degree
New York Penal Law 265.11: Criminal sale of a firearm in the third degree is a class D felony. The guilty party under this law is not an authorized gun holder or seller. Beyond possessing the weapon illegally, under 265.11 one must also have sold, exchanged, gave, or disposed a firearm. Under this legal stature, a high capacity ammunition device is also classified as a firearm. One charged with Criminal sale of a firearm in the third degree could also be in possession of such a device with the intent to sell it.
There are related offenses to 265.11. One of these is New York Penal Code 265.01-a: Criminal possession of a weapon on school grounds. Another related offense is New York Penal Code 265.13: Criminal sale of a firearm in the first degree.
An example of New York penal law 261.11 is of course if police are witness to an illegal transaction of a firearm. For instance, officers happened upon a sale of a pistol either by surveillance or through coincidence. The seller in this instance would be charged with Criminal sale of a firearm in the third degree.
Another example would be if police arrested an individual for illegal possession of a firearm. If upon interrogation, the one who had the weapon told the officers who sold them their gun, police could then arrest the suspected seller under Criminal sale of a firearm in the third degree.
A final example relates to searching the house of an individual with an official search warrant. Police officers may locate several weapons and ammunition, for instance two of the same pistols held in a storage device with a price tag. Officers could then arrest the weapon owner under Criminal sale of a firearm in the third degree, as there is a clear intention to sell these firearms.
The most obvious defense of Criminal sale of a firearm in the third degree would be challenging the search from police that led to the discovery of such a firearm. Police are subject to strict guidelines for stopping an individual and searching them. There are also guidelines in place that prevent the searching of one’s home. If the police involved in the case violated these regulations in any way, then it is possible to break the case of the prosecution. It is possible to argue that police stopped an individual for racially motivated reasons instead of qualified intelligence or probable cause. If this is the case, then one has a chance to fight New York Penal Code 261.11.
Another possible defense is challenging the fact that the one in possession of the firearm had intent to sell or distribute it in any way. While holding an illegal firearm in the first place is against the law and subject to penalty, the sale of such weapons is a much heavier charge. A NYC defense lawyer could argue that the weapon was never on the market and there was no chance for its distribution. In this way, it is possible to fight the charge of Criminal sale of a firearm in the third degree.
Being that New York Penal Code 261.11 is a class D felony, such a conviction carries a possible prison term of up to seven years. The severity of the prison time is depending upon the individual’s criminal history. For instance, if one was previously convicted of a felony, the term is likely to be longer. There is also a possible fine attached to 261.11.
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