New York Penal Law:

§ 265.03 Criminal possession of a weapon in the second degree.
A person is guilty of criminal possession of a weapon in the second
degree when:
(1) with intent to use the same unlawfully against another, such
person:
(a) possesses a machine-gun; or
(b) possesses a loaded firearm; or
(c) possesses a disguised gun; or
(2) such person possesses five or more firearms.
Criminal possession of a weapon in the second degree is a class C
felony.

The recent change has made illegal possession of a loaded or defaced handgun on one’s person a class C felony. Up to and until November 2006, when the new law took effect such a crime was classified a class D felony. Possession of the same handgun in one’s home or place of business is still classified as a class D felony. The distinction in the classification is the sentencing, for both pleas or convictions after trial. A Class D felony is a felony punishable by law with sentences of one year incarceration or five (5) years probation (or “felony probation”) where there is a pre-indictment plea. A post-indictment plea offers a sentence range of 1-3 years of incarceration. These sentence provisions only apply to first time offenders. A conviction after trial, however, requires a sentence of up to seven years. On the other hand, a class C felony pre-indictment plea usually results in a one year incareration, while post-indictment plea typically results in a sentence ranging from 3 1/2 to 7 years. Again, the penalties for second or repeated felony offenders are a lot stricter. After trial conviction, the law requires for a period of incarceratiof up to fifteen years.

Ironically, the number of violent crimes in New York by 2006, crimes involving the use of handguns, was more than 50% less the total number of violent crimes in the previous year. Consequently, the legislature’s sole objective was not only to reduce viiolent crimes, but to keep our police officers safe since the number of law enforcement fatalities has increased in the past decade. In fact, after a police officer shooting back in 2005, Gov. Pataki called a “special session” and passed new gun legislation in fall of that same year. That law made it a felony to possess three handguns inoperable or not, while the previous law set the number at twenty. Gov. Pataki also imposed stiffer penalties for police shooters.
New York State’s lobbyists and gun control advocates have gathered data to support their respective positions. The overall conclusion is that there is no clear and conclusive data to indicate there is a correlation between strict gun control laws and the reduction in violent crimes. In fact, gun related injuries still remain one of the country’s leading causes of death and suicide.

In addition, the Legislature made this significant change to its illegal handgun possession laws while still dealing with advocates for changes to the policy on handgun license procedure. Many believe that New York’s licensing procedure significantly impedes one’s Constitutional right to bear arms. New York is one of a few states that has a licensing procedure where there is a prescribed list of licenses that may be issued and whether any permit may issued at all. Most other states have a procedure where all of its residents may obtain permits, upon a criminal background search and the completion of training. The New York State Rifle and Pistol Association is currently working on proposed legislative changes to New York’s current licensing procedure, that will require the state to apply an “objective standard” to applicants. The bill, although not quite specific yet, would eradicate the several restictive classes of possession and would make each resident eligible to obtain a license.

Whether the new changes will render any significant results is left to be seen. It is too soon to make any such determination. One thing is clear, however, is that the stiffer sentences are being imposed. The procedural laws, based on the U.S. and New York Constititutions, are still intact, so an accused may have a chance if his Fourth, Fifth or Sixth Amendment rights were violated during the arrest process.