In the first two parts in our series of blogs on New York’s assault weapon ban we discussed the absolute silliness in banning firearms based upon certain cosmetic features. Now we discuss the most troubling part of the ban from the perspective of the citizen who finds himself charged under New York law with possessing an Assault Weapon or the experienced criminal defense lawyer who takes on the responsibility of defending the citizen.


Generally, possession of a so called “assault weapon” in New York is a violation of Criminal Possession of a Weapon in the Third Degree under New York Penal Law sec 265.02 (7). Possession of a “Large Capacity Ammunition Feeding Device” is a violation of Penal Law sec 265.02 (8). Both are class “D” violent felonies in New York and are therefore punishable by a definite sentence of up to seven years in prison. A person charged under this section could get a sentence of Probation in lieu of a state prison sentence if the judge thought it was appropriate. In other words, prison is not mandatory.

One of the more troubling provisions of this law is that possession even inside one’s home is a “D” felony despite recent United States Supreme Court Decisions that indicate that there is a constitutional right to possess a firearm in your home for self defense. In addition, a very troubling provision makes it a “C” felony to possess a loaded assault weapon inside of your home. The problem is that the definition of “loaded” in New York is very broad. To understand the definition of loaded in New York please see our blog entitled “When Your Unloaded Gun Is Really Loaded” Under New York’s definition of loaded it would seem that any firearm or assault weapon inside your home would be considered loaded. In addition, possession of any “loaded” firearm inside your home if you have ever in the past been convicted of a crime is a “C” felony. That means that if you possess a loaded firearm inside your home (again it would be hard to imagine a situation where a gun in your home was not considered loaded under New York Law) and have been previously been convicted of Reckless Driving, you are facing a “C” felony. The significance of a “C” felony is that you must receive a mandatory minimum of 3 and 1/2 years in state prison and you can receive up to 15 years in prison. In other words, probation is not an available sentence. Only prison is available.

These cases are highly technical and obviously very serious. The consequences of a conviction are tremendous. Tilem & Campbell senior partner Peter H. Tilem has spent twenty years involved in first prosecuting and then defending gun and weapons cases in New York and Federal Court with outstanding success. To discuss an assault weapon case or any criminal case contact Peter Tilem by telephone or visit us on the web at

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