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:
– 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.
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.
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