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New York Penal Code 265.35: Prohibited Use of Weapons

By Spodek Law Group | May 3, 2017
(Last Updated On: July 28, 2023)

Last Updated on: 28th July 2023, 07:20 pm

The law frowns on the dangerous or irresponsible discharge of a firearm anywhere, and New York has some of the strongest gun and weapons laws in the United States. As per the New York Penal Code section 265.35, it’s a crime for a person to:

  • Hunt with a dangerous weapon in a county wholly embraced by a city
  • Shoot a gun at an aircraft, train, car, bus
  • Point a firearm at or discharge a firearm when it is pointed at another person
  • Maim or injure another person with a firearm unless it is in self defense

Here’s an example
The Yankees win the World Series against the Mets in seven games. An ecstatic Yankees fan goes out into his yard and fires his shotgun into the air in celebration. The guy didn’t point the gun in the direction of anybody or anything but the sky, but what goes up must come down. The discharge of the shotgun was witnessed by the neighbors on both sides of the shooter. The neighbor who is a Mets fan calls 911 and says there’s a guy outside shooting a gun. If arrested for that act, the Yankees fan would likely be found guilty of the prohibited use of a weapon.

Defenses to prohibited use of a weapon
New York Penal Code section 265.35 contemplates certain defenses. First and foremost is the performance of the official duties of a police or peace officer. Those duties are quite broad. Self defense is also addressed. The criminal jury instructions for New York penal law 35.15(2) involving justification and the use of deadly force elaborate at length on self defense. Other viable defenses like denying discharge of the weapon, somebody else firing the weapon and unintentional firing can also be raised. Remember that the prosecution has the burden of proof in any criminal case. It must prove the defendant guilty beyond a reasonable doubt.

Prohibited use of weapons can be charged as a misdemeanor or a felony
You’ll want an experienced and effective NYC criminal lawyer representing you on any weapons charge. A misdemeanor conviction for prohibited use of a weapon carries a jail sentence of up to 364 days in jail. A felony conviction is punishable by up to seven years in prison. Any conviction involving a weapons offense can follow you for life.

We leave no stone unturned
Don’t give police a statement or a confession. Upon being arrested, you have the right to remain silent along with the right to an attorney. The prosecution will only try to use your statement, confession or both of them against you in the future. When we’re retained, we’ll review all police reports and the like and then we’ll interview any witnesses. We start looking for any technical procedural errors involving your arrest right away. Sloppy police work can often lead to a dismissal. Then we’ll interview any occurrence and post occurrence witnesses. We want every piece of evidence that the state has against you along with any evidence that’s favorable to you. If witness statements are conflicting, those help us in raising reasonable doubt.

Call us first upon any arrest for a free consultation and case evaluation. We’ll advise you of your options. Then we’ll also advise you of how to best protect your rights and interests. We’re available toll free at 888-981-9185 24 hours a day 365 days a year. Exercise your right to remain silent along with your right to the defense attorney of your choice. Contact us immediately after any arrest. Your job, freedom and future all need to be protected.

Discharge of Firearm Lawyers

In the state of New York, including in New York City, the discharge of a firearm generally is considered illegal. If you are charged with the unlawful discharge of a firearm in New York, you face the prospect of criminal prosecution that can result in a fairly significant penalty.

What Constitutes a Firearm for the Purposes of the Law?

A number of different types of weapons fall into the category of what constitutes a firearm for the purposes of an unlawful discharge. These include a shotgun, handgun, rifle, or automatic weapon. In addition, any weapon that fires any type of projectile is likely to be considered a firearm for the purposes of a prosecution under the illegal discharge law in New York.

Exceptions to Illegal Discharge

There are some limited circumstances in which the discharge of a firearm is not deemed illegal in the state of New York. Situations in which a firearm lawfully can be discharged include hunting, target practice, use in the line of official duty, and self-defense.

Legal Possession of a Firearm Does Not Make Discharge Legal

The fact that a person lawfully owns a firearm does not mean that he or she can lawfully discharge the weapon. In New York, absent using a lawfully-owned firearm within the parameters set forth a moment ago, a discharge can be illegal because it occurs in the proximity of another person, a motor vehicle, a school, or a residential dwelling.

Discharge of a Firearm and Associate Crimes

A common occurrence in New York is that a person is charged with the unlawful discharge of a firearm in relation to a related or associated case. In other words, in some instances, an unlawful discharge of a firearm allegation is used to enhance criminal charges being lodged against a person in a case.

Examples of other types of criminal charges that oftentimes are associated with the unlawful discharge of a firearm in New York include murder, assault, car jacking, robbery, drug-related offenses, felon in possession of a firearm, gang-related crimes, illegal hunting activity, domestic assault, or terrorism.

The addition of a firearm charge like this adds to the potential penalty in a case in and of itself. However, an unlawful discharge charge added to an associated criminal charge can actually enhance the specific sentence associated with the companion criminal charge.

Federal and State Charges

The unlawful discharge of a firearm is a crime that can be prosecuted on both the state and federal levels. The venue in which an unlawful discharge of a firearm is prosecuted depends on the specific facts and circumstances of the case at hand. Keep in mind that it is possible for a person to end up prosecuted on both the state and federal levels for an unlawful discharge of a firearm matter, particularly if here are associate charges violating both state and federal law.

Penalties for Unlawful Discharge of a Firearm

The penalties for unlawful discharge of a firearm depend in part on the facts of a specific case as well as a defendant’s prior criminal history, if any. On the state level, in New York a person convicted of the unlawful discharge of a firearm can face anywhere from 18 months to seven years in prison. If the case is brought on the federal level, a defendant can face up to a 10 year term of incarceration.

Monetary penalties can be imposed in an unlawful discharge of a firearm case as well. In addition, if there a defendant can also face a restitution order, depending on whether any financial losses were incurred because of the incident.

Retain Experienced Legal Representation

A person facing charges associated with the unlawful discharge of a firearm best protects his or her rights and interests by retaining the services of a skilled, experienced New York criminal defense attorney. A New York criminal defense lawyer will schedule a initial consultation with a person facing unlawful discharge charges at no cost to the potential client.

When facing charges of unlawful discharge of a firearm, a person needs to be proactive when retaining legal counsel. The reality is that a case tends to move quickly in the New York criminal justice system, and there is no time to spare in seeking a criminal defense attorney.

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