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NY Penal Law § 265.08: Criminal use of a firearm in the second degree

It is illegal in New York to possess a deadly weapon during the commission of another felony. If you do so you will be charged with criminal use of a firearm. To be convicted under New York Penal Code § 265.08, criminal use of a firearm in the second degree, the prosecutor must show the following:

  1. That you committed a class C violent felony offense, and
  2. That you possessed a loaded deadly weapon or that you displayed an object that appears to be a firearm

A man breaks into a house and steals a video game system. When the man was apprehended a short time later, the police discovered that he had a firearm in this jacket pocket. This man could be prosecuted for burglary in the second degree. Because burglary in the second degree is a class C violent felony, and there is evidence that the man had a firearm when he committed the burglary, the man could also be prosecuted for criminal use of a firearm in the second degree.

Related Offense
  1. Criminal possession of a weapon in the second degree: New York Penal Code § 265.03

In order to be convicted of criminal use of a firearm in the second degree, you must have possessed a deadly weapon and it must have been loaded. The term "deadly weapon" is defined in the New York Penal Code § 10.00(12) as:

  1. A loaded weapon that can cause death or serious physical injury
  2. Switchblade knife,
  3. Gravity knife
  4. Pilum ballistic knife
  5. Metal knuckle knife
  6. Dagger
  7. Billy
  8. Blackjack
  9. Plastic knuckles
  10. Metal knuckles

If the object that you had is not a deadly weapon or something that appears to be a firearm, the prosecutor will have a tough time proving that you should be convicted of criminal use of a firearm in the second degree.


Because criminal use of a firearm in the second degree is a class C felony, if you are convicted your possible sentence will be up to 15 years in prison. The minimum prison sentence will be 7 years since you will have already been convicted of a prior violent felony offense. Following release from prison you may be required to serve a term of post-release supervision.

New York Penal Code § 265.08: Criminal use of a firearm in the second degree

A person is guilty of criminal use of a firearm in the second degree when he commits any class C violent felony offense as defined in paragraph (b) of subdivision one of section 70.02 and he either:

  1. possesses a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged; or
  2. displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.
Contact the Law Offices of Stephen Bilkis & Associates

If you are charged with criminal use of a firearm in the second degree you will spend at least 7 years in prison away from your family and friends. Furthermore, you will have to contend with the terms of post-release supervision for a number of years. However, there may be defenses to a charge of criminal use of a firearm in the second degree that may result in the charge being dismissed or in your being acquitted. 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.

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