By: Michael J. McConnell, NY Criminal Defense Lawyer
If you’ve been arrested for Criminal Possession of a Weapon in the 2nd Degree under Penal Law Section 265.03(3) while visiting New York, it’s important to know that you’re charged with a Class C Violent Felony that is punishable by at least 3.5 years in state prison if you’re convicted even if this is your first ever arrest.
This often comes as a horrible shock to many lawful gun owners from out-of-state who may have simply been visiting New York while in possession of a loaded firearm that was perfectly legal for them to carry in their home state.
In today’s blog post, I’m going to explain how these arrests happen, why a gun permit from another state doesn’t matter in New York, the serious consequences of a CPW 2 conviction, and how a criminal defense attorney can help.
How Traffic Stops Lead to CPW 2 Arrests for Out-Of-State Drivers in NY
A common way this happens is when someone is pulled over by the police for a traffic infraction such as speeding. The officer might then ask if you have anything in your vehicle. While you have a right to remain silent and can refuse to answer such questions, you may not have known that. Or perhaps you simply thought there was no harm in responding.
After all, as a law-abiding and honest citizen who genuinely believed you were doing nothing wrong, you tell the officer that you have a firearm in the center console that is lawfully registered in your home state. Next thing you know, you’re in handcuffs and being hauled into court accused of committing a very serious felony.
Now, you might be wondering if there are any federal laws that might protect the right of gun owners to travel interstate with their firearms. The answer is yes, but the protections are very limited and would not help in the hypothetical situation above.
Under federal law, specifically the Firearm Owners Protection Act (FOPA), the right to travel between states with a legal firearm (i.e., one that you lawfully were allowed to possess in your home state) is protected under very strict conditions. For example, those protections may only apply when traveling through a state when the gun is unloaded, locked in the truck or another container, and is not easily accessible.
In the hypothetical example about, because the firearm was loaded and in the center console, FOPA will not protect the out-of-state traveler from serious criminal charges in New York.
Why the Police Arrested You Even Though You Have a Valid Gun Permit from Another State
If you’re wondering why you were arrested, here’s the short answer under NY law.
In New York, a person can be charged with CPW in the 2nd Degree under PL § 265.03(3) when such person “possesses any loaded firearm” outside of their “home or business.”
Exempted from this provision are those who possess a valid New York license to carry a loaded firearm. Because New York doesn’t recognize gun permits from other states, this means that your home state’s permit is not valid here. Thus, without a New York permit, your possession of the loaded gun in your car is unlawful even though it would have been perfectly legal for you back home.
In this way, a gun license from another state is not the same in New York as having a driver’s license from that other state. While a driver’s license from another state is valid in New York, an out-of-state gun license is not.
While many states do recognize gun permits from other states, New York is not among them. Sadly, this causes too many otherwise law-abiding people to get tripped up and thrown into our state’s criminal legal system.
While many prominent gun rights groups such as the National Rifle Association (NRA) have long called for broader reciprocity among states, the reality is that New York law is very clear that an out-of-state gun permit is not valid here.
So whatever anyone thinks the law should be, it’s important to realize what the law actually is. And the reality is that even if that same permit from your home state may have been valid in most other states, it’s not in New York.
Understanding the Serious Consequences of a CPW 2 Arrest in NY
To make things worse, the potential punishment for a conviction of CPW 2 in New York is incredibly harsh. It’s considered a Class C violent felony to possess a loaded firearm in violation of PL § 265.03(3). And in NY, Class C violent felonies are punishable by a mandatory minimum sentence of 3.5 years in prison and a maximum of 15 years.
The minimum required sentence can increase beyond 3.5 years if you have one or more prior felony convictions. For example, if you have a prior felony that qualifies you as a non-violent predicate felon, your minimum sentence increases to 5 years. If you’re a violent predicate felon, the minimum sentence increases to 7 years.
Also remember that those are just the minimums that could apply. Depending on how bad the sentencing judge thinks your prior criminal record is, they could give you up to 15 years in state prison.
On top of any prison sentence you receive, you’ll have period of post-release supervision anywhere between 2.5 to 5 years. Even after that concludes, you will continue to have a violent felony conviction on your record, which can have serious collateral consequences related to employment, immigration, and more.
How a Local NY Criminal Defense Attorney Can Help an Out-Of-State Resident Fight a Gun Possession Case
Here are 3 important things that a trusted criminal defense attorney with experience handling CPW cases can do to fight your case and seek the best possible outcome under the circumstances.
First, a good defense attorney will carefully examine whether the police had a lawful basis to stop you or search your car. If the police obtained their evidence in violation of your constitutional rights under the 4th Amendment of the U.S. Constitution, a judge might suppress any evidence recovered (i.e., the gun), which can lead to a dismissal of the case.
Second, there could be a number of valid legal defenses available to you. Even in cases that might appear strong on paper, a lawyer who is familiar with the nuances and complexities of gun cases might spot facts that suggest there are reasonable doubts that could lead to an acquittal.
For example, maybe there are possible angles to challenge whether the prosecutor can prove you knowingly possessed the firearm. Indeed, even though New York has a statutory presumption under PL § 265.15 regarding possession of a firearm found in a vehicle, there are exceptions that could apply. Knowing what to look for and how to build a strong defense based on those facts can prove critical.
Third, even if the case against you is genuinely strong and there is not a great argument that the police obtained the evidence unlawfully, your attorney can consider a mitigation strategy.
The goal of mitigation is to show the prosecutor and judge that there are mitigating circumstances that should be considered as part of a plea deal – for example, a plea to a lesser charge that might allow you to avoid incarceration. Things like a lack of a criminal record, dedication to your family, stable employment, and letters of support can go a long way here.
Also, while “ignorance of the law” is not a valid legal defense to PL § 265.03(3), the fact that you genuinely were unaware that your out-of-state gun license wasn’t valid in New York can help with mitigation. The idea is that your level of moral culpability under such circumstances is a lot less (perhaps non-existent) compared to your level of technical legal culpability under the cold hard letter of the law.
For that reason, prosecutors and judges may give your sincere lack of knowledge regarding NY’s very strict gun laws some consideration for the sole purpose of mitigating the potential punishment. How much weight they might give this factor can vary significantly among individual prosecutors and judges, so it’s important to make sure your mitigation packet includes things beyond just your lack of knowledge regarding the law.
When mitigation is successful, you might be allowed to plead guilty to a lesser charge that doesn’t require prison time. Other times, there might be a diversion program offered to you that could result in charges being reduced or dismissed upon successful completion of a program or other such conditions.
To be sure, these mitigation opportunities can certainly vary a bit depending on which county your case is in. Also, it can sometimes take a fair amount of negotiation between your attorney and the prosecutor to get a favorable resolution, but it is without a doubt worth the effort since it can potentially help otherwise law-abiding individuals avoid the overly harsh consequences of a CPW 2 conviction.
Now, you might be wondering which of those three options are best for your case. The answer will always depend on the exact facts of your case. With that said, it will typically be worthwhile for your attorney to explore each of these avenues if you’ve been charged with unlawfully possessing a firearm while visiting New York.
Conclusion
It’s normal to feel overwhelmed after a CPW 2 arrest that occurred while you were just driving through New York. The seriousness of this charge is scary, but you have options. Contacting a New York criminal defense attorney who handles gun possession cases should be among your first steps.
The Law Office of Michael J. McConnell offers free consultations for all out-of-state residents charged with CPW in the 2nd Degree in New York. You can call us 24/7 at (914) 810-0510 to request a free consultation for your gun possession case. These cases are a primary focus for our office, and we’re always ready to fight for you.
Disclaimer: This post is for informational and educational purposes only. It is not intended to be legal advice. If you need legal advice, you should immediately contact an attorney licensed in your jurisdiction to speak with them privately and confidentially about the unique facts of your case. Prior results do not guarantee future outcomes.