What to Do if You Have Been Charged with a Gun Crime

New York’s draconian gun laws are some of the toughest in the nation, often infringing upon the Second Amendment rights of law-abiding citizens. At Varghese & Associates, we passionately defend the fundamental right to keep and bear arms and are relentless in our fight against unconstitutional charges. If you find yourself unconstitutionally charged with a gun crime in New York, it’s crucial to take immediate and informed action. Here’s what you need to know and do to protect your rights.

New York’s Strict Gun Laws

New York’s SAFE Act, passed in 2013, introduced numerous regulations purportedly aimed at reducing gun violence. However, these regulations have been heavily criticized for imposing unreasonable restrictions on lawful gun ownership. In New York City, the rules are even stricter, requiring residents to obtain a permit for any firearm. This process involves extensive background checks and can take months, creating unnecessary obstacles for responsible citizens trying to exercise their Second Amendment rights.

Common New York Gun Charges That May Be Unconstitutional

New York’s strict gun laws are designed to enhance public safety, but they also raise significant constitutional concerns. Understanding which charges may infringe upon your Second Amendment rights is crucial if you are facing gun charges in New York. Here are some common gun charges in New York that may be considered unconstitutional:

Criminal Possession of a Weapon in the Second Degree

This charge is often applied when an individual possesses a loaded firearm outside of their home or place of business without a permit.

• Constitutional Issue: The requirement to obtain a permit for firearm possession can be seen as an infringement on the Second Amendment, especially if the permitting process is unduly burdensome or discriminatory.

Criminal Possession of a Firearm

This charge applies to individuals found possessing a firearm without proper registration or a valid permit.

• Constitutional Issue: Mandatory registration and permits may violate the right to keep and bear arms, particularly if the laws are overly restrictive and prevent law-abiding citizens from exercising their constitutional rights.

Possession of a Large Capacity Ammunition Feeding Device

New York law prohibits the possession of magazines that hold more than ten rounds of ammunition.

• Constitutional Issue: Restrictions on magazine capacity can be argued to limit an individual’s ability to defend themselves effectively, thus infringing on Second Amendment protections.

Possession of Certain Types of Firearms

Under the SAFE Act, New York bans the possession of certain types of firearms, such as assault weapons.

• Constitutional Issue: Bans on specific types of firearms may be viewed as an infringement on the right to keep and bear arms, especially if those firearms are commonly used for lawful purposes.

Failure to Comply with SAFE Act Provisions

The SAFE Act includes various provisions, such as background checks for ammunition purchases and recertifying pistol permits every five years.

• Constitutional Issue: The cumulative impact of these provisions can create significant barriers to lawful gun ownership, potentially violating the Second Amendment.

Carrying a Firearm Without a Permit

In New York, carrying a firearm without a valid permit is a serious offense, often resulting in felony charges.

• Constitutional Issue: The permitting process can be excessively stringent and discretionary, effectively preventing many individuals from exercising their right to carry a firearm for self-defense.

Gun-Free School Zones Act Violations

Federal and state laws prohibit the possession of firearms within school zones, with certain exceptions.

• Constitutional Issue: While aimed at protecting students, these laws can inadvertently criminalize lawful gun owners who unknowingly pass through school zones, raising questions about fair enforcement and constitutional rights.

Penalties for Being Convicted of a Gun Crime in New York

New York has some of the toughest gun laws in the United States, and being convicted of a gun crime can lead to severe penalties. The state’s stringent regulations aim to curb gun violence but also result in harsh punishments for violations. Here is an overview of the penalties you might face if convicted of a gun crime in New York:

Criminal Possession of a Weapon in the Second Degree- Class C Felony

Penalties:

• Minimum prison sentence: 3.5 years
• Maximum prison sentence: 15 years
• Fines up to $15,000

Criminal Possession of a Weapon in the Third Degree- Class D Felony

Penalties:

• Minimum prison sentence: 2 years
• Maximum prison sentence: 7 years
• Fines up to $5,000

Criminal Possession of a Firearm- Class E Felony

Penalties:

• Minimum prison sentence: 1.5 years
• Maximum prison sentence: 4 years
• Fines up to $5,000

Possession of a Large Capacity Ammunition Feeding Device- Class D Felony

Penalties:

• Minimum prison sentence: 2 years
• Maximum prison sentence: 7 years
• Fines up to $5,000

Possession of a Defaced Firearm- Class D Felony

Penalties:

• Minimum prison sentence: 2 years
• Maximum prison sentence: 7 years
• Fines up to $5,000

Carrying a Firearm Without a Permit

Varies Depending on Circumstances

Penalties:

• Can range from a misdemeanor to a felony
• Misdemeanor: Up to 1 year in jail, fines, and probation
• Felony: Several years in prison and substantial fines

Criminal Use of a Firearm in the First Degree- Class B Felony

Penalties:

• Minimum prison sentence: 5 years
• Maximum prison sentence: 25 years
• Fines up to $30,000

Criminal Use of a Firearm in the Second Degree- Class C Felony

Penalties:

• Minimum prison sentence: 3.5 years
• Maximum prison sentence: 15 years
• Fines up to $15,000

Aggravating Factors

Certain factors can lead to enhanced penalties, including:

• Previous Convictions: Prior felony convictions can result in longer prison sentences and higher fines.
• Use of Firearm During a Crime: Using a firearm during the commission of another crime, such as robbery or assault, can lead to additional charges and increased penalties.
• Possession in Sensitive Areas: Possessing a firearm in prohibited areas such as schools or government buildings can result in more severe consequences.

Collateral Consequences

Beyond legal penalties, a conviction for a gun crime can have lasting impacts on your life:

• Employment: Difficulty finding or keeping a job due to a criminal record.
• Housing: Challenges in securing housing, as many landlords conduct background checks.
• Education: Potential loss of educational opportunities and financial aid.
• Rights: Loss of certain civil rights, including the right to vote and possess firearms.

What to Do if You Have Been Unconstitutionally Charged with a Gun Crime

If you find yourself unconstitutionally charged with a gun crime in New York, it’s crucial to take immediate and informed action. The state’s stringent gun laws often clash with constitutional rights, leading to complex legal challenges. Here’s a step-by-step guide on what to do if you believe your gun crime charges violate your constitutional rights.

1. Seek Legal Representation Immediately

• Contact a Criminal Defense Attorney: Reach out to a criminal defense attorney who with experience in gun laws and constitutional rights. At Varghese & Associates, we have extensive experience navigating New York’s complex gun laws and protecting our clients’ rights.
• Initial Consultation: During your initial consultation, provide your gun rights attorney with all relevant information and documentation related to your case. This helps assess the validity of your charges and formulate a defense strategy.

2. Understand Your Rights

• Second Amendment: Familiarize yourself with your Second Amendment rights, which protect your right to keep and bear arms.
• Due Process: Ensure that your right to due process under the Fourteenth Amendment is not being violated. This includes fair treatment through the normal judicial system.

3. Document Everything

• Records and Evidence: Keep detailed records of all interactions with law enforcement, as well as any documents related to your firearm, such as permits, registration, and purchase receipts.
• Witnesses: If there were witnesses to your arrest or any related incidents, gather their contact information and statements. Their testimony can be crucial in your defense.

4. Challenge the Constitutionality of the Charges

• File Motions: Your attorney can file motions to dismiss the charges based on constitutional grounds. This may involve arguing that New York’s gun laws are overly restrictive and violate your Second Amendment rights.
• Precedent Cases: Your defense may reference previous court rulings where similar charges were deemed unconstitutional.

5. Gather Supporting Evidence

• Permits and Licenses: Ensure you have all necessary permits and licenses for your firearm. If you were denied a permit unfairly, this could support your case.
• Character Witnesses: Gather statements from individuals who can vouch for your responsible gun ownership and character.

6. Prepare for Court

• Stay Informed: Be actively involved in your defense by attending all court hearings and meetings with your gun crime defense attorney.
• Follow Legal Advice: Adhere to all legal advice your criminal defense attorney provides, including what to say and how to present yourself in court.

7. Explore All Legal Options

• Constitutional Challenges: Be prepared to challenge the constitutionality of the specific laws you are charged with. This may involve arguing that these laws impose unreasonable restrictions on your Second Amendment rights.
• Alternative Defenses: Your gun rights attorney might also explore other defenses, such as unlawful search and seizure, lack of probable cause, or procedural errors made by law enforcement.

Defense Strategies for Unconstitutional Gun Charges

Facing gun crime charges in New York can be daunting, especially when you believe those charges violate your constitutional rights. At Varghese & Associates, we are committed to providing you with the strongest possible defense. Here are some key defense strategies we can employ to protect your rights and challenge the charges against you:

Challenge the Legality of the Search and Seizure

• Unlawful Search: We can file a motion to suppress the evidence if the firearm was discovered during an unlawful search. This could significantly weaken the prosecution’s case.
• Lack of Probable Cause: We will examine whether law enforcement had probable cause for the search that led to your arrest. If not, any evidence obtained may be inadmissible in court.

Argue Constitutional Violations

• Second Amendment Rights: We will argue that the charges against you violate your rights. This defense is particularly relevant in cases where New York’s stringent gun laws impose unreasonable restrictions on lawful gun ownership.
• Fourteenth Amendment Due Process: We will uphold your right to due process. Any procedural errors or unfair treatment by law enforcement can be grounds for dismissing the charges.

Question the Permitting Process

• Excessive Burden: If the process to obtain a firearm permit is excessively burdensome or discriminatory, we can argue that the permitting requirements themselves are unconstitutional.
• Unfair Denial: We will investigate whether your permit application was unfairly denied and use this as a basis to challenge the charges.

Present Evidence of Lawful Possession

• Valid Permits and Licenses: If you have valid permits and licenses for your firearm, we will present this evidence to demonstrate that your possession was lawful.
• Compliance with Regulations: We will show that you complied with all relevant regulations and that any alleged violations are baseless.

Expert Testimony

• Constitutional Law Experts: We can bring in experts in constitutional law to testify about the unconstitutionality of certain gun laws and how they apply to your case.
• Firearm Experts: Experts in firearms can provide testimony on the technical aspects of gun ownership and usage, supporting your case that you followed the law.

Self-Defense and Necessity

• Self-Defense: If you carried a firearm for self-defense, we can argue that your actions were justified.
• Necessity: In certain situations, possessing a firearm might have been necessary to prevent greater harm. We can use this defense to explain why you had the firearm.

Procedural Errors by Law Enforcement

• Violation of Protocol: If law enforcement violated any protocols during your arrest or investigation, we can use these errors to challenge the validity of the charges.
• Improper Handling of Evidence: We will scrutinize evidence handling to ensure it was collected, stored, and presented correctly. Any mishandling can be grounds for dismissal.

Public Policy Arguments

• Balancing Rights and Safety: We will argue that while public safety is important, it should not come at the expense of constitutional rights. This defense highlights the need for laws that balance safety with individual freedoms.
• Precedent Cases: We will reference previous cases where similar laws were struck down as unconstitutional, using these precedents to bolster your defense.

Defend Your Rights with Varghese & Associates

Don’t let New York’s oppressive gun laws strip you of your Second Amendment rights. At Varghese & Associates, we fiercely defend your right to keep and bear arms. If you’ve been unconstitutionally charged with a gun crime, act now.

Our criminal defense legal team will provide the dedicated support and aggressive representation you need to challenge these unjust charges. Contact Varghese & Associates today for a consultation. Let’s fight for your rights and secure your future together.

New York Gun Laws FAQs

Navigating New York’s convoluted and overly restrictive gun laws can be frustrating, especially when these laws infringe upon your Second Amendment rights. As criminal defense attorneys committed to protecting your fundamental rights, we at Varghese & Associates are here to help you understand and challenge these oppressive regulations.

1. Do I need a permit to own a firearm in New York?

Yes, and it’s an onerous process. In New York, you need a permit to own a handgun. While rifles and shotguns don’t require a permit statewide, New York City imposes its own burdensome requirements. These restrictions complicate lawful gun ownership unnecessarily.

2. What is the process for obtaining a handgun permit in New York?

The process is excessively complicated. It involves filling out a detailed application, undergoing a comprehensive background check, submitting fingerprints, and providing character references. Approval by a licensing officer can take months, making it difficult for law-abiding citizens to exercise their rights promptly.

3. Can I carry a concealed weapon in New York?

Technically, yes, but it’s challenging. New York requires a separate permit for carrying a concealed handgun, and you must prove a “special need” for self-protection. This subjective standard often results in permit denials, effectively infringing on your right to self-defense.

4. Are there restrictions on the types of firearms I can own in New York?

Yes, and these restrictions are severe. The SAFE Act bans many types of firearms, including so-called assault weapons and high-capacity magazines, which are standard in other states. These bans are more about control than actual public safety.

5. What are the penalties for possessing an unregistered firearm in New York?

The penalties are harsh. Possessing an unregistered firearm can lead to severe felony charges, including criminal possession of a weapon. Convictions can result in several years of imprisonment and hefty fines, all for merely exercising your constitutional rights.

6. What should I do if I’m charged with a gun crime in New York?

Fight back. Contact an experienced criminal defense attorney immediately. At Varghese & Associates, we have experience in defending against these unconstitutional charges. We will navigate the legal complexities, protect your rights, and build a strong defense.

7. Can I transport my firearm through New York if I’m traveling?

With extreme caution. Transporting firearms through New York is highly regulated and fraught with legal risks. Firearms must be unloaded and locked in a container separate from ammunition. New York City adds even more restrictions. Consulting with legal counsel is highly advisable.

8. What are the SAFE Act requirements for gun owners?

The SAFE Act imposes numerous regulations. It requires background checks for all gun sales, bans high-capacity magazines, mandates registration of so-called assault weapons, and demands recertification of pistol permits every five years. It’s a bureaucratic quagmire that burdens law-abiding gun owners.

9. Are there exemptions to New York’s gun laws?

Yes, but they’re limited. Certain individuals, like law enforcement officers and military members, may be exempt from some regulations. Antique firearms are subject to different rules, but these exemptions do little to address the broader assault on Second Amendment rights.

10. Can I defend myself with a firearm in New York?

In theory, yes. New York recognizes the right to self-defense, but the laws governing the use of firearms in self-defense are restrictive and complicated. You must navigate these laws carefully to ensure your actions are deemed reasonable and proportionate to the threat.