New York Penal Law Section 265.01-b created a standalone felony offense for unlicensed firearm possession. Enacted in 2013 as part of the NY SAFE Act, this section elevated what had previously been a misdemeanor-level offense into a Class E felony, significantly increasing the legal consequences for possessing an unregistered or unlicensed handgun in New York.[1]
Definition of "Firearm" Under PL 265.01-b
The term "firearm" as used in PL 265.01-b carries a specific meaning under New York law that is narrower than common usage. Under PL 265.00(3), a "firearm" means a pistol or revolver, a short-barreled rifle (barrel under 16 inches), a short-barreled shotgun (barrel under 18 inches), or any weapon made from a rifle or shotgun that has an overall length of less than 26 inches.[2] Notably, standard-length rifles and shotguns are not classified as "firearms" under this definition. As a practical matter, PL 265.01-b primarily targets unlicensed handgun possession.
Elements of the Offense
Under subdivision 1, a person is guilty of criminal possession of a firearm when he or she possesses any firearm as defined by PL 265.00(3).[1] The prosecution must prove two elements: (1) that the defendant possessed a device meeting the statutory definition of a firearm, and (2) that the firearm was operable. The government does not need to prove that the defendant intended to use the firearm unlawfully. Mere possession without a valid license is sufficient.[3]
Subdivision 2 of PL 265.01-b addresses a separate scenario: a person who lawfully possessed a firearm before the SAFE Act took effect and knowingly failed to register it pursuant to PL 400.00(16-a). This provision captures individuals who were required to register assault weapons under the SAFE Act's registration mandate but failed to do so by the April 15, 2014 deadline.[4]
Penalties
Criminal possession of a firearm is a Class E felony. A convicted defendant faces a maximum sentence of up to four years in state prison.[1] Unlike the violent felony charges under PL 265.03, a Class E felony is not automatically classified as a violent felony offense, which means the court retains more sentencing discretion. Probation, conditional discharge, and split sentences (jail time plus probation) remain available as sentencing options for first-time offenders.[5]
Distinction from PL 265.03 (Second-Degree Possession)
PL 265.01-b is frequently confused with PL 265.03 (criminal possession of a weapon in the second degree), but the two statutes target different conduct. PL 265.01-b criminalizes possession of an unloaded or non-loaded firearm without a license. PL 265.03 applies when the firearm is loaded and possessed outside the home or business, carrying the much harsher penalty of 3.5 to 15 years as a Class C violent felony.[6] A defendant found with a loaded handgun outside the home will typically face second-degree charges under PL 265.03 rather than the PL 265.01-b charge.
Exemptions
PL 265.20 provides exemptions from prosecution under PL 265.01-b for persons with a valid pistol license issued under PL 400.00, active and retired law enforcement officers, military personnel, licensed dealers, and other specifically enumerated categories.[7]