PL 265.08 · Article 265
Criminal Use of a Firearm in the Second Degree
This offense requires a qualifying class C violent felony plus either possession of the specified loaded deadly weapon or display of what appears to be a firearm. The prosecutor must prove the underlying felony and the applicable weapon alternative against the person accused beyond a reasonable doubt.
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Text us immediately · (845) 290-2492Definition under New York law
PL 265.08 · Original statutory wording; excerpts must be read together with the full section.
§ 265.08 Criminal use of a firearm in the second degree.A person is guilty of criminal use of a firearm in the second degreewhen he commits any class C violent felony offense as defined inparagraph (b) of subdivision one of section 70.02 and he either:(1) 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(2) displays what appears to be a pistol, revolver, rifle, shotgun,machine gun or other firearm.Criminal use of a firearm in the second degree is a class C felony.Read the full section at the New York State SenateIn everyday language
This offense requires a qualifying class C violent felony plus either possession of the specified loaded deadly weapon or display of what appears to be a firearm. The prosecutor must prove the underlying felony and the applicable weapon 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.
CPL § 70.20What the prosecutor must prove
- Required in either route: commission of a class C violent felony defined in section 70.02(1)(b).
- The weapon requirements are alternatives, not cumulative: possession of a deadly weapon that is loaded and can discharge a shot readily capable of causing death or other serious injury; or display of what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm.
- The prosecutor must prove the underlying felony and the applicable weapon alternative beyond a reasonable doubt.
Defenses that commonly apply
- What evidence establishes every requirement of a qualifying class C violent felony?
- For the possession alternative, what establishes possession of a loaded deadly weapon with the specified discharge capability?
- For the display alternative, what do witnesses or recordings establish about whether the person accused displayed something appearing to be a firearm?
Penalties and collateral consequences
A Class C Felony carries a maximum sentence of up to 15 years and a fine of up to $5,000.
A conviction generally carries a mandatory consecutive sentence on top of the underlying offense.
Common questions about your defense
Is an unloaded weapon necessarily a defense to second-degree criminal use of a firearm?
The possession alternative requires a loaded deadly weapon with the stated ability to discharge a shot capable of death or other serious injury. Evidence that the weapon was unloaded may undermine that alternative, but the display alternative requires only display of what appears to be a firearm. For either route, the prosecutor must also prove the qualifying class C violent felony beyond a reasonable doubt.
Why is starting a defense early imperative?
An early defense is imperative to protect your rights and preserve evidence that may disappear. Keep court papers, messages, footage, and witness information without deleting or altering anything. Counsel can review court dates and applicable deadlines, request evidence, and begin preparing your defense immediately.
How does an experienced lawyer help build the best possible defense?
Your lawyer checks the exact subsection, compares its requirements with the evidence, and listens to your account. Depending on the charge, counsel may investigate identification, intent, witness reliability, and possible problems with searches, statements, or testing. Working together on an early strategy is imperative to pursue the best possible outcome in your circumstances; no outcome is guaranteed.
Does an arrest or police report prove the charge?
No. A police report is part of the case, not a finding of guilt. Your lawyer can compare its claims with video, records, and witnesses and assess whether admissible evidence meets each applicable requirement.
Can the charge be dismissed or reduced?
That depends on the evidence, the charged subsection, and procedural rules. Challenging evidence, filing motions, negotiating a legally available resolution, or preparing for trial may be appropriate. No lawyer can promise dismissal, reduction, or acquittal.
Every case turns on its own facts. The information on this page is general, not legal advice.
Related charges
PL 265.04 · Class B Felony
PL 265.09 · Class B Felony
PL 265.01 · Class A Misdemeanor
PL 265.02 · Class D Felony
PL 265.03 · Class C Felony
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