The Second Amendment gives people the right to keep (own) and bear (carry) firearms. However, the Constitution also gives the federal government, and the states, the power to restrict this right in the interest of public safety. Since New York is one of the bluest of blue states, the Empire State’s gun laws significantly restrict firearm possession. Carrying a gun is generally illegal, even if you do not intend to use it.

Even though the laws are broad, prosecutors must still establish every element of every offense beyond a reasonable doubt. Given that high burden of proof, a Rochester gun charges lawyer is often able to engineer a favorable plea bargain or even get such cases thrown out of court.

Elements of the Offense

Section 265.01, which is fourth-degree possession, is the most commonly charged gun possession offense in New York. Possessing an “imitation pistol” is also illegal if the defendant intends to use it menacingly.

Enhancements apply if a defendant possesses a more dangerous firearm, or if the defendant possesses the gun in a prohibited place, such as a school.

Procedural defenses often apply in gun possession prosecutions. Officers cannot charge a person with carrying a gun unless they find it first. Such encounters often give rise to issues such as:

  • Failure to Give Miranda Warnings: Before police officers begin custodial interrogation, they must inform defendants of the Constitutional rights, such as the right to remain silent and the right to counsel. This obligation applies when custodial interrogation begins. The law is vague on this point, but generally, custodial interrogation begins when an officer asks a question, and the defendant is not free to leave.
  • Improper Search Warrant Exception: Officers hardly ever have search warrants in gun, drug, or other possession cases. So, prosecutors must rely on search warrant exceptions, such as plain view. However, these exceptions are very narrow. For example, if the initial law enforcement contact was illegal, the plain view exception does not apply.

If these initial procedural defenses are unavailable or ineffective, a Rochester gun charges lawyer usually turns to substantive arguments, such as the legal definition of “possession.” Proximity alone is not enough to establish possession in criminal court. The additional elements are:

  • Knowledge: A person might be sitting on a gun and not legally possess it. The defendant must know that there is a gun under the seat. General knowledge about an illegal object, or a suspicion that a gun may exist, is probably insufficient.
  • Control: If the firearm is much more than an arm’s length away from the defendant, it is challenging to establish control in court. It’s even harder to prove this point if someone else was holding the gun or the firearm was locked away.

The additional elements of possession often come into play in automobile possession cases. Generally, if an officer finds a gun in a car, the officer arrests everyone in the care for a 265.01 infraction. These arrests do not typically hold up in court.

The criminal gun possession law does not apply to an antique firearm. If the gun has no commercially available ammunition, it is an antique firearm under New York law.

Rochester Gun Charges Lawyers and Criminal Case Resolutions

Possession without intent is usually nonviolent, especially if the gun was not loaded. So, pretrial diversion may be available. If the defendant completes all program requirements, the prosecutor dismisses the case.

Deferred disposition may also be available, especially if the case involves any of the defenses outlined above. If the evidence is hopelessly defective, as it often is on an issue like legal possession, a judge may throw the case out of court after a pretrial hearing.

Connect with an Aggressive Attorney

Criminal possession cases have several possible defenses. For a free consultation with an experienced Rochester gun charges lawyer, contact the Law Office of Frank Ciardi. Home and jail visits are available.

The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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