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Thread: NYS Penal Law 240.26 and ability to still carry?

  1. #1
    Regular Member
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    May 2011

    NYS Penal Law 240.26 and ability to still carry?

    Hello all,

    I've tried to get legal assistance and my legal aid as well as the JAG office arent sure of my issue.

    Have a Criminal Court case in NYC (Domestic Violence) related. Plea deal is:

    Harassment 2nd degree(Violation) with the completion of Anger Management Class.

    I'm in the NY Army National Guard, Federal Law says I will still be able to carry so I'm clear there.

    NYS Law is what the NY Army National Guard goes by.

    Would I still be able to carry a weapon in NYS if I accept this plea deal?


  2. #2
    Moderator / Administrator Grapeshot's Avatar
    Join Date
    May 2006
    North Chesterfield, Va.
    Would hope that facing criminal charges that you have an attorney.

    Either way this is a case of being a question best asked of professional council - your future RKBA could depend on the answer.
    Better to not open your mouth and be thought the fool, than to open it and remove all doubt.

    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

  3. #3
    Regular Member
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    Aug 2007
    Granite State of Mind
    Ditto what Grapeshot says -- and the man does have experience with the legal system.

    Don't assume that you're clear by federal law. The "Domestic Violence Offender Gun Ban" (also known as the "Lautenberg amendment"), defines what a "misdemeanor crime of domestic violence" is for purposes of the gun ban, in 18 USC 921(a)(33):

    (A) Except as provided in subparagraph (C),the term “misdemeanor crime of domestic violence” means an offense that—
    (i) is a misdemeanor under Federal, State, or Tribal law; and
    (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

    Please note that you don't have to be convicted of any crime of violence to lose your gun rights (and possibly your military career). If you are convicted of any misdemeanor, and any element of the offense was "the use or attempted use of physical force, or the threatened use of a deadly weapon", you're toast under Lautenberg.

    Don't forget that the allegation can be completely false, yet if you accept a plea bargain, the elements alleged are assumed to be true and factual. Even if it's "he said/she said", and it's downgraded to a misdemeanor charge of harassment, what "she said" becomes critical. If she said you used or attempted to use any physical force, or threatened the use of a deadly weapon, then once again you're toast under Lautenberg.

    Also pay attention to (33)(B), which makes a very few, narrowly crafted, exemptions for what can be considered "convicted". Don't rely on it.

  4. #4
    Regular Member
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    May 2010
    , ,
    Well....first question I need to ask...

    Are you a resident of New York State?

    (For the armchair attorney's out there, notice I said STATE, not CITY...NYC has homerule, and laws are different and much harsher there than the rest of the state...)

    If the answer is No, then its moot, as ONLY NY State residents can carry a handgun in NY State. Period. NY does NOT reciprocate nor recognize any other state licenses.

    If you ARE a NYS resident, then it really will depend on which county you reside in, and how gun friendly/unfriendly the issuing officer (usually county judge or sheriff) is. There's nothing specific in the penal codes that *prohibit*, its just guidelines for what the issuing officer can/will use to deny, if they are predisposed to denying licenses more often than approving them.

    Fir instance, in my county (Sullivan), you've got to be a real screw-up to NOT get a full, unrestricted carry license. 2 counties to the east (Rockland) you've got to be VERY well connected politically, be worth at least 50 million dollars, or have a high-risk business such as a jeweler, grocery store (handling daily cash register money/receipts) etc., and at that it'll be a business restricted license only. No CCW to carry when/where you want.

    As Grapeshot said, in NY the key is a VERY good attorney, but an attorney will do you absolutey no good in the initial application phase, as the judge/sheriff will see the attorney and be 100% convinced that you're a screw-up if you handle the initial application process through an attorney.

    The way NY State works, is you need to make the application first, then wait to see what happens. If its denied, *then* you have standing to challenge in a courtroom. Keep in mind, though, that the issuing officer can still deny it on the grounds that you are not of *suitable moral character*, and the appeals courts have been known to refuse to take the appeal, in essence letting the lower court ruling to stand.

    NY State is NOT a gun-friendly state. Period. Their law (the Sullivan Act) has been in place since 1911, has been challenged many times, and has never had a portion of it struck down. The law is badly written and executed, in as much as if you are, for instance, a Rockland resident, you will almost never be able to get a full, unrfestricted license to carry concealed anywhere not prohibited by state/fed law, but if I take a day trip there from Sullivan County, I can carry in Rockland legally.

    If you need a leading 2A attorney who knows the laws INSIDE AND OUT, contact David Jensen. He has an office in NYC, and one in Beacon (Duchess County) NY. I had the pleasure of meeting him personally and speaking with him at the NRA Annual Meeting in Pittsburgh, when at a SAF-Sponsored dinner for gun bloggers. He is working closely with Alan Gura (who I also met there, along with Alan Gottlieb of the SAF) on the Westchester NY case coming up which challenges the Sullivan Act. The guy is bright, shrewd, and knows the Sullivan Law better than most.

    Plus, he's a gunnie himself...he was open-carrying in Pittsburgh. :-)

    Good luck.

  5. #5
    Regular Member
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    May 2011


    Yes, I'm both a resident of NYS and NYC.

    Hmm Well I seem to get no help from the JAG Attorneys or my Legal Aid Attorney.

    I'm not sure whom to ask about this inquiry. I'm honestly dead broke since this alleged incident took place.

    I dont want to take any deals that will hinder my military service or get me discharged.

    What is RKBA?



  6. #6
    Regular Member
    Join Date
    Oct 2008
    Hire an attorney now, or wish that you had hired one a year from now. You could probably just get by with a consultation (60 minutes to ask all the questions you want), $100, go collect some cans.
    "Sed quis custodiet ipsos custodes?"

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