Under New York Penal Law § 265.03, Criminal Possession of a Weapon in the Second Degree is a Class C violent felony, carrying a mandatory minimum sentence of 3½ years in prison, with a maximum of 15 years. There is no probation. No conditional discharge. For most defendants, a conviction means prison—period.

Yet increasingly, we are seeing a different outcome in carefully selected cases.

Two Recent Cases: From Mandatory Prison to Full Dismissal

Our firm recently secured non-criminal disorderly conduct dispositions—with dismissal and sealing of all charges—in two separate loaded firearm cases that, on paper, mandated prison.

Case 1: The Bronx Tow Truck Driver

Our client, a 50-year-old tow truck driver with no prior record, was lawfully licensed to carry a firearm upstate. While working in the Bronx, he became involved in an altercation and displayed the weapon to deter two individuals who he maintained had been threatening him. He was immediately arrested by NYPD, and the firearm was recovered from his truck.

Under a traditional analysis, this case presented significant exposure:

Loaded semiautomatic firearm in New York City
No valid NYC carry license
Display of the weapon during a confrontation

The client immediately posted bail and we took the case off the indictment track by waiving speedy trial. Despite the seriousness of the charges, including menacing, we were able to present a compelling mitigation package to the Bronx DA, emphasizing:

His lawful ownership and licensing elsewhere
His mostly clean criminal record and long work history
The absence of any injury or discharge

Result: After meeting with several supervisors, we obtained a disorderly conduct disposition. Disorderly conduct in New York is a violation, not a crime. All criminal charges were dismissed, the case was sealed and the firearm returned.

Case 2: The Rockland County Transient

Our second client, a college engineering student from Alabama, was visiting a local friend. He worked part-time as an armed security guard in various states, including Alabama, Tennessee and Pennsylvania.

He was stopped late at night in Rockland County for vehicle infractions (tinted windows and no front plate). A 9mm handgun was recovered from under the seat. The legality of the search was, at best, questionable.

Rather than rushing into indictment, we:

Posted bail
Waived speedy indictment
Challenged the stop and search
Presented a detailed pre-indictment submission
Highlighted his licensing history, employment as an armed guard, and academic standing

Result: Disorderly conduct disposition. Criminal charges dismissed. Case sealed. Firearm returned.

Strategy: Getting Off the “Conveyor Belt”

Gun cases in New York often move quickly toward indictment—what many defense attorneys refer to as the “conveyor belt.”

We took a different approach:

Delayed indictment strategically
Submitted detailed pre-pleading advocacy packages
Humanized the clients beyond the arrest report
Framed the cases in both equitable and constitutional terms

This early intervention was critical. Once indicted, leverage diminishes significantly.

The Bruen Effect: A Quiet Shift in Prosecutorial Discretion

The Supreme Court’s decision in New York State Rifle & Pistol Assn. v. Bruen (2022) reshaped Second Amendment jurisprudence by rejecting discretionary licensing regimes and emphasizing a historical-tradition test.

While Bruen did not invalidate New York’s core possession statutes, its practical impact is being felt in courtrooms:

Prosecutors are increasingly aware of Second Amendment litigation risk
There is growing recognition that lawful gun owners from other states present different equities than traditional defendants
Offices appear more willing—informally—to differentiate between dangerous conduct and technical illegality

We are seeing what can best be described as a “softening by application,” not by statute.

A Pattern Emerging: Airport and Interstate Cases

We have also handled numerous cases involving individuals arrested at New York airports—particularly in Queens—where travelers:

Lawfully possess firearms in their home states
Attempt to transport them improperly through New York

These cases often follow a similar trajectory:

No criminal intent
Lawful ownership elsewhere
Immediate disclosure or lack of concealment

There appears to be an unwritten but observable practice:
Non-violent, first-time offenders with lawfully owned firearms (outside New York) are increasingly receiving non-criminal resolutions.

What This Means

New York law has not changed on paper. A loaded firearm without a New York license is still a violent felony.

But in practice:

Context matters more than ever
Early advocacy is critical
Constitutional arguments—while not dispositive—are influencing outcomes

For the right client, with the right presentation, even the most serious gun charge can be resolved without a criminal conviction—or prison.

Our Approach

We have developed a focused practice representing individuals charged with unlawful firearm possession in New York, particularly those who:

Are licensed in another jurisdiction
Have no criminal history
Are facing first-time arrests with severe mandatory prison exposure

These cases require more than standard defense—they require:

Immediate intervention
Strategic delay
Persuasive narrative development
Constitutional awareness

Final Thought

The difference between a violent felony conviction and a sealed violation can come down to what happens in the first days and weeks of a case.

In today’s evolving legal landscape, the law may be rigid—but its application is not.

Nicholas Kaizer

Levitt & Kaizer

(212) 480-4000

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