New York Penal Law 265.09 Criminal Use of a Firearm in the First Degree Lawyer
Criminal use of a firearm in the first degree is a high-exposure firearm enhancement offense tied to a qualifying class B violent felony. The statute also contains a special consecutive-sentence provision for certain loaded-weapon displays.
What Prosecutors Must Prove
Article 265 charges are not all the same. The New York Criminal Jury Instructions and Penal Law separate weapon possession, firearm possession, firearm use, firearm sale, sensitive-location, ghost-gun, and degree-based allegations. The specific subdivision controls the defense.
- The accused committed a qualifying class B violent felony offense.
- The accused possessed a loaded deadly weapon capable of firing a shot that can cause death or serious injury, or displayed what appeared to be a firearm.
- The firearm-use allegation was connected to the underlying violent felony.
- For any special sentencing allegation, the prosecution must prove the loaded-weapon display facts that trigger the statutory provision.
- The proof must survive challenges to identification, accomplice liability, search, seizure, statements, and forensic testing.
Example of How This Charge May Be Alleged
A first-degree criminal-use charge may be added to a serious robbery, burglary, assault, kidnapping, or other class B violent felony case where prosecutors claim a firearm was displayed or possessed. Defense work often targets the underlying felony, the firearm proof, and the statutory link between the two.
Defense Issues
- Challenge the qualifying class B violent felony.
- Dispute firearm display, possession, operability, loaded status, or identity.
- Litigate accomplice-liability limits, especially where another person allegedly displayed the weapon.
- Suppress unlawfully obtained firearm, video, statements, identifications, and phone evidence.
- Address sentencing exposure and mitigation early.
Evidence That Needs Immediate Review
Weapons and firearm cases often depend on body camera video, car-stop details, warrant papers, DNA, fingerprints, ballistics, operability testing, ammunition evidence, phone extractions, location data, confidential informants, undercover recordings, and statements. Early review can change how the case is charged, negotiated, or tried.
Lebedin Kofman LLP handles New York state weapon cases, federal firearm matters, serious felony defense, DWI-related weapon issues, and cases involving search warrants, vehicles, apartments, workplaces, and shared spaces.
Sentencing and Exposure
New York Penal Law 265.09 is listed as Class B felony. Actual exposure depends on the exact subdivision, prior record, violent-felony status, federal overlap, immigration or licensing concerns, bail posture, and whether the charge is tied to robbery, burglary, assault, drug trafficking, homicide, or another felony.
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Frequently Asked Questions
Does criminal use of a firearm first degree always add prison time?
The statute contains a special consecutive-sentence provision for certain loaded-weapon displays, but application depends on the facts and legal findings.
Can the defense challenge both the violent felony and the firearm allegation?
Yes. A complete defense challenges each required part of the charge.
Speak With a New York Weapons Defense Lawyer
If you are charged, under investigation, or worried about a weapon, firearm, ghost-gun, search-warrant, or firearm-sale allegation, contact defense counsel before speaking with law enforcement.
Prior results do not guarantee a similar outcome. This page provides general information only and is not legal advice. Every case must be evaluated on its own facts and circumstances.
Why People Call Lebedin Kofman LLP
When a criminal allegation, DWI arrest, federal investigation, Title IX matter, or high-stakes accusation can affect your freedom, license, job, education, immigration status, or reputation, you should be able to speak with a defense lawyer quickly and get a clear plan.
- Speak with a lawyer about an arrest, investigation, court date, order of protection, license consequence, or federal exposure.
- Get early guidance before speaking with police, prosecutors, school investigators, insurers, agencies, or employers.
- Review defense options including dismissal, reduction, suppression issues, trial posture, negotiation strategy, and collateral consequences.