NY Penal Law § 265.11: Criminal sale of a firearm in the third degree

An offense is considered criminal sale of a firearm in the 3rd degree when an individual is not legally authorized to possess a firearm, and either:

1. sells, gives, or exchanges the firearm, or
2. has the intent to sell it.

An undercover police officer was observing an area known for drug activity saw a man give a woman what appeared to be a marihuana cigarette. The woman lit the cigarette and began to smoke it. The officer arrested both of them. The man was charged with criminal sale of marihuana in the fifth degree while the woman was charged with criminal possession of marihuana in the fifth degree.

1. Criminal possession of a weapon on school grounds: New York Penal Code § 265.01-a
2. Criminal sale of a firearm in the first degree: New York Penal Code § 265.13

If the police uncovered the weapon during a search, one way to defend a charge of criminal possession of a weapon in the fourth degree is to challenge the search that uncovered the weapon as unlawful. There are rules that the police must follow in order to stop and search someone's person or someone's home. If the police do not follow such rules a court may find that the search was unlawful. If that happens the prosecutor may have no choice but to dismiss the case against you.

In addition, if you are able to challenge any of the elements of the crime, then you would be able to weaken the prosecutor's case. For example, under New York Penal Code § 265.01(2) the prosecutor would have to prove that not only that you possessed a prohibited weapon, but also that you had the intent to use it against another person.

Because criminal sale of marihuana in the second degree is a class D felony if you are convicted your possible sentence will be up to 7 years in prison. You actual sentence will depend on a number of factors including your prior criminal history. If you have been previously convicted of a felony your sentence will be longer than if this is your first offense. In addition there may be financial consequences to a criminal sale of marihuana in the second degree conviction. The judge may order you to pay a fine, and you will have to be various fees associated with being convicted of a crime in New York.

A person is guilty of criminal sale of a firearm in the third degree when such person is not authorized pursuant to law to possess a firearm and such person unlawfully either:

1. sells, exchanges, gives or disposes of a firearm or large capacity ammunition feeding device to another person; or
2. possesses a firearm with the intent to sell it.

Whether or not you view a marihuana crime as a "big deal," the law views marihuana offenses as serious. Even if you are convicted of the least serious sale of marihuana crime, you could end up in jail and you will have a criminal record. Because of the potential consequences you should immediately contact an attorney who has experience defending those accused of marihuana offenses. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with gun crimes, grand larceny, white collar crimes, and other serious crimes. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.