Criminal Use of a Firearm in the First Degree

Definition under New York law

PL 265.09 · Original statutory wording; excerpts must be read together with the full section.

§ 265.09 Criminal use of a firearm in the first degree.(1) A person is guilty of criminal use of a firearm in the firstdegree when he commits any class B violent felony offense as defined inparagraph (a) of subdivision one of section 70.02 and he either:(a) possesses a deadly weapon, if the weapon is a loaded weapon fromwhich a shot, readily capable of producing death or other serious injurymay be discharged; or(b) displays what appears to be a pistol, revolver, rifle, shotgun,machine gun or other firearm.Criminal use of a firearm in the first degree is a class B felony.(2) Sentencing. Notwithstanding any other provision of law to thecontrary, when a person is convicted of criminal use of a firearm in thefirst degree as defined in subdivision one of this section, the courtshall impose an additional consecutive sentence of five years to thesentence imposed on the underlying class B violent felony offense wherethe person convicted of such crime displays a loaded weapon from which ashot, readily capable of producing death or other serious injury may bedischarged, in furtherance of the commission of such crime, provided,however, that such additional sentence shall not be imposed if thecourt, having regard to the nature and circumstances of the crime and tothe history and character of the defendant, finds on the record thatsuch additional consecutive sentence would be unduly harsh and that notimposing such sentence would be consistent with the public safety andwould not deprecate the seriousness of the crime. Notwithstanding anyother provision of law to the contrary, the aggregate of the five yearconsecutive term imposed pursuant to this subdivision and the minimumterm of the indeterminate sentence imposed on the underlying class Bviolent felony shall constitute the new aggregate minimum term ofimprisonment, and a person subject to such term shall be required toserve the entire aggregate minimum term and shall not be eligible forrelease on parole or conditional release during such term. Thissubdivision shall not apply where the defendant's criminal liability fordisplaying a loaded weapon from which a shot, readily capable ofproducing death or other serious injury may be discharged, infurtherance of the commission of crime is based on the conduct ofanother pursuant to section 20.00 of this chapter.

In everyday language

This offense requires a qualifying class B violent felony combined with either possession of the specified loaded deadly weapon or display of what appears to be a firearm. Those weapon alternatives are distinct, and the prosecutor must prove the underlying felony and the applicable alternative against the person accused beyond a reasonable doubt.

At a criminal trial, the prosecutor must prove every element of the charged subsection and that you committed the offense beyond a reasonable doubt. An accusation is not proof of guilt. Where the statute provides alternatives, the prosecutor need not prove every alternative; the charged theory matters. Affirmative defenses may have different proof rules.