NEW YORK GUN LAWS - WHEN YOUR UNLOADED GUN IS REALLY LOADED
Tilem & Campbell is fortunate to have former Firearms Trafficking prosecutor Peter H. Tilem as its Senior Partner able to advise clients on all aspects of New York gun possession. Under New York law, the severity of a Criminal Possession of a Weapon charge dealing with a firearm can hinge on whether the firearm was loaded or not. For example, one may be charged with Criminal Possession of a Weapon (CPW) in the Fourth Degree for simply possessing a firearm [See PL 265.01(1)]. Criminal Possession of a Weapon in the Fourth Degree does not require that the firearm be loaded. Therefore, one is guilty of CPW 4th if they simply possess an unloaded firearm without proper licensing. Criminal Possession of a Weapon in the 4th degree is an “A” misdemeanor that carries up to one year in jail.
However, if one possess a loaded firearm outside their home or business, the charge is CPW 2nd, a “C” felony which carries a mandatory minimum 3 ½ year to a maximum 15 years in state prison. [See PL 265.03(3); PL 70.02(3)(b)]. Therefore, if you possess an operable firearm outside your home or place of business, the difference between facing an “A” misdemeanor (CPW 4th) which carries up to one year in jail with no mandatory minimum (which means probation is possible) and the “C” felony (CPW 2nd) which carries a mandatory minimum of 3 ½ years in state prison has everything to do with whether the firearm was loaded.
Here’s the problem. Your unloaded gun might be considered loaded under New York law. Under the Penal Law, a “Loaded firearm” is defined as any firearm actually loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses ammunition for that firearm
. [See PL 265.00(15) for the exact definition of “loaded firearm”]. Therefore, the term loaded firearm means not only a truly loaded firearm but also the contemporaneous possession of an unloaded firearm and ammunition for that firearm. Accordingly, under the law of New York State, an unloaded firearm may actually be considered a loaded firearm.