New York Penal Law Sections 265.11, 265.12, and 265.13 define three degrees of criminal sale of a firearm. The statutes use different elements and quantity thresholds, so possession, intent to sell, and a completed sale must not be treated as interchangeable.[1][2][3]
Third Degree: PL 265.11 (Class D Felony)
Section 265.11 applies when a person is not authorized by law to possess a firearm and unlawfully sells, exchanges, gives, or disposes of a firearm or large capacity ammunition feeding device. It also covers possession of a firearm with intent to sell it. The offense is a Class D felony.[1]
A single-firearm transaction can satisfy the conduct element, but lack of a dealer license alone does not establish this offense. The statute requires both that the person is not authorized by law to possess a firearm and that the sale, exchange, gift, or disposal is unlawful.[1]
Second Degree: PL 265.12 (Class C Felony)
Section 265.12 applies when a person unlawfully sells, exchanges, gives, or disposes of five or more firearms to another, or unlawfully sells, exchanges, gives, or disposes of a total of two or more firearms to one or more people within a period of no more than one year. The offense is a Class C felony.[2]
Penal Law Section 70.02 lists Section 265.12 as a Class C violent felony offense. A first violent-felony sentence for a Section 265.12 conviction governed by Section 70.02 uses a determinate range of three and one-half to fifteen years. Other offenses and repeat-offender rules can use different ranges.[4]
First Degree: PL 265.13 (Class B Felony)
Section 265.13 applies when a person unlawfully sells, exchanges, gives, or disposes of ten or more firearms to another, or unlawfully sells, exchanges, gives, or disposes of a total of three or more firearms to one or more people within a period of no more than one year. The offense is a Class B felony.[3]
Section 70.02 lists Section 265.13 as a Class B violent felony offense. A first violent-felony sentence for a Section 265.13 conviction governed by Section 70.02 uses a determinate range of five to twenty-five years. Other offenses and repeat-offender rules can use different ranges.[4]
Possession, Intent, and Completed Sales
Possession of ten or more firearms satisfies the quantity element of first-degree possession under Section 265.04. Possession of a firearm with intent to sell appears in third-degree sale under Section 265.11. First-degree sale under Section 265.13 requires an actual unlawful sale, exchange, gift, or disposal at one of its statutory quantity thresholds. Mere possession with intent to distribute does not by itself satisfy Section 265.13.[5][1][3]
Section 265.10 separately addresses specified unlawful manufacture, transport, shipment, and disposition conduct. Whether more than one offense applies depends on the charged conduct and the elements proved in the particular case.[6]