Queens County Bar Association
Martindale Hubbell - Distinguished 2023

What Are the Potential Defenses in These Cases?

The first thing to understand is that lack of knowledge of the law is not in any way a defense. People that are arrested on these charges are innocent people. They are trying to follow the law. And the fact that they thought that they were following the law is not in and of itself a defense. Obviously it’s something that will be used in mitigation. There are two special defenses that are available, but, unfortunately, they are rarely used successfully. Police officers and even retired police officers are supposedly immune from arrest based upon a Federal law called HR218, the Law Enforcement Officer’s Safety Act (LEOSA), which purports to protect military and civilian law enforcement officers (including retired officers who are registered) who have handgun licenses that are otherwise not recognized by the state.

The other Federal protection is the Interstate Transportation of Firearms Law (18 U.S. Code 926A) which states that if you are in transit between two places where it’s legal to have the handgun, you are protected from prosecution under local (New York) law. Unfortunately, New York simply ignores both these Federal laws and continues to place people under arrest who clearly meet those exceptions. You can use Federal law as an affirmative defense but you should know that in New York, they are going to arrest you even if you fit into one of those categories. The primary manner in which these cases are defended is exactly what you would think. You want to show the district attorney, who is the one who has to decide what the final charges will be, that this was really an innocent encounter by a responsible person who had no intention of violating the law. This a far more extensive and detailed process than one might think and, when I defend someone, I put a great deal of effort into providing a detailed and verified portrait of my client.

In almost all cases, we are able to convince the district attorney to allow a plea to a very, very minor charge, something that will not give any kind of a criminal record and sometimes we can even eventually get the case dismissed. But a defendant, and particularly his attorney, should never take a hardline position with the district attorney. “Hey, I don’t want to talk to you, let’s just take this case to trial”, is a good start toward insuring a nice, long prison sentence.

Are Firearm Possession Charges Misdemeanor Or Felony In Nature?

These are all felony charges. As stated above, possession of an unloaded handgun used to be a misdemeanor. It has now been upgraded to a felony, although it is not a violent felony. A loaded handgun is something far more serious. And it’s important to know that New York’s definition of a loaded handgun is very different than you might think. New York considers a handgun to be loaded if there are bullets in “close proximity” to the handgun. So that means if you have your handgun in a lockbox and the bullets are separate within your luggage, New York will consider that to be in close proximity and even though there are no bullets inside the gun or even in the lockbox, New York considers that a loaded handgun subject to the horrendous penalties described above.

Would It Mitigate The Case If The Firearm Is Unloaded?

It would help the case if there were no bullets that you’re traveling with. If you don’t have any bullets, then it’s an unloaded handgun and that is a less serious, although it’s still a very serious charge. But if you’re carrying the bullets along with the handgun, even though the gun is unloaded by any common sense definition, it’s still a loaded handgun.

What Are The Collateral Consequences Of Having A Gun Possession Conviction On Record?

First of all, you’re going to be convicted of a felony and have a felony record for the rest of your life which presents all of the issues that come into play when somebody’s convicted of a felony. As I indicated, if it’s a loaded handgun and you choose to fight it all the way through the courts and you lose, the judge has no choice. He’s going to be very sympathetic and I wish he did not have to do it, but the law says he’ll have to sentence you to a minimum sentence of 3 and a half years. That’s the lowest he’s allowed to give. We’ve seen situations like that. Mainly they have been because a person either got some very bad legal advice or was very stubborn in determining that they wanted to fight this case because “they know their rights.”

One thing that is always a collateral consequence in these cases is that the handgun is always forfeited. The district attorney will never ever consent to returning the gun, unless it’s a police officer but other than that, they will not return it no matter what the circumstances.

Additional Information About Gun Possession Charges At Airports

The only thing I would say is if you’re considering taking the handgun to New York under any circumstances and you think you might fit one of the exceptions, I would be extremely careful and in almost all circumstances, I would say don’t take the airport to or through a New York airport. Leave your gun at home!

For more information on Defenses In Gun Possession Cases, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 793-5700 today.

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