Criminal First Degree Use of a Firearm: New York Penal Code § 265.09

New York Penal Code 265.09 makes it illegal to be in possession of a deadly weapon while committing a felony. To be convicted of criminal first degree use of a firearm, the accused must have:

1. Possessed a loaded deadly weapon or displayed something that looked like a firearm, such as a machine gun, shotgun, rifle, revolver, or a pistol, and
2. Was committing a violent felony offense, Class B.

Suppose man broke the sliding glass door and entered a home from the back yard. He took several valuable items, including jewelry and a video gaming system. While making his escape the owner of the home confronted him, whereupon the man injured the owner. The police responded to the alarm that was triggered and captured the man who committed the burglary a short time after the burglary and attack. The police officers found a loaded firearm in the man’s jacket pocket as well as the items that the man stole. The man was charged with burglary and battery in the first degree, a Class B violent felony, as well as criminal first degree use of a firearm.

Underlying felony not committed. To be convicted of criminal first degree use of a firearm, the prosecuting attorney must build a case that proves the underlying Class B felony was committed. If any doubt can be cast on the evidence and the logic that the prosecuting attorney has tied together in an attempt to convict, then an opportunity for dismissal of charges or plea for a lesser crime can be raised.

Other lines of defense. Seasoned defense attorneys who have been involved in numerous weapons cases have extensive experience with circumstantial and various types of evidence, as well as other case elements, that may be used to help tip the case in favor of the defendant.

Imprisonment. Criminal first degree use of a firearm is a Class B felony which warrants up to twenty-five years of imprisonment. Ten years is the minimum prison sentence allowed as a prior conviction will have been assumed with the underlying Class B felony crime.

Probationary Period. Once the prison term has been served, the presiding judge may impose a term of supervision after release from jail or a term of probation wherein the convicted person must report regularly to a parole officer and abide by the rules handed down from the court.

To reiterate, a person will be found guilty of criminal first degree use of a firearm if that person commits any violent felony offense, Class B, as provided in section 70.02(a) and:

1. The person shows an object that appears to be a firearm, machine gun, shotgun, rifle, revolver, or a pistol; or
2. The person has in his or her possession a loaded and deadly weapon that may be used to readily cause serious injury or death.

To effectively defend against a charge of criminal first degree use of a firearm, it is highly recommended that you engage the legal services of a reputable and experienced defense attorney firm with resources to successfully protect clients’ interests and rights.

The Barry C. Weiss P.C. law firm has successfully defended persons charged with criminal first degree use of a firearm, as well as other weapons and firearm violations, misdemeanors and felony crimes in the State of New York, including criminal possession of a firearm, criminal possession of a weapon, and criminal sale of a firearm. The Elliot Adler PC law firm has highly skilled and experienced lawyers who are committed to providing a strong case to protect and serve the best interests of clients, building defenses designed to cause the dismissal or reduction of charges.

We can be reached at (212) 785-1300 or newyorkcriminallawyer24-7.com to schedule a no-obligation, free legal consultative meeting to evaluate your case.

For additional information, refer to the following section of the New York Penal Code:

1. First degree criminal dangerous weapon possession: § 265.04