Gun Possession Defense in New York

New York's gun laws are among the strictest in the country. Criminal possession of a loaded firearm outside the home or place of business is a Class C violent felony under Penal Law § 265.03 carrying a mandatory minimum of 3 1/2 years in state prison. The Sullivan Act — the original 1911 statute — treats unlicensed handgun possession harshly, and the 2019 amendments increased exposure further.

How These Cases Get Made

Most gun-possession arrests in New York City come from car stops, street stops, or warrant searches of an apartment. The defense work starts with the constitutional posture of whichever event produced the gun.

• Vehicle stops. Was there reasonable suspicion to stop the car? Probable cause to search the vehicle or to order occupants out? People v. Hinshaw and People v. Garcia control here.
• Street stops. The four-tier De Bour analysis governs every interaction. A bag search after a Level 1 inquiry is not lawful, no matter what was inside.
• Apartment searches. Search-warrant affidavits are challenged for staleness, reliability of confidential informants, and Franks issues.

Constructive Possession Defenses

Where the gun is found in a shared car, a glove box, an apartment, or a bag near multiple people, the prosecution proceeds on constructive possession — that the defendant exercised dominion and control over the weapon. We attack constructive-possession cases by showing the absence of dominion, the presence of other plausible possessors, the lack of forensic links (no fingerprints, no DNA), and the failure to interview occupants of the space.

Temporary Lawful Possession

New York recognizes a defense of temporary innocent or lawful possession: a person who briefly possesses a gun for the purpose of turning it over to police, removing it from a child, or preventing imminent harm is not guilty under PL § 265. The defense is fact-specific and requires careful preparation.

Second Amendment Challenges After Bruen

The Supreme Court's decision in NYSRPA v. Bruen reshaped Second Amendment doctrine and has produced a wave of as-applied and facial challenges to New York's licensing scheme. Where the facts fit, we raise Bruen-based defenses to certain § 265 charges.

If you have been arrested on a gun-possession charge in New York, call us at 212-233-1233 or email [email protected].