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CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE IS AN ARMED FELONY FOR SENTENCING PURPOSES IF THE FIREARM IS LOADED AND OPERABLE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Centra, diverging from the First Department, determined criminal possession of a weapon second degree can constitute possession of a deadly weapon within the definition of an armed felony if the firearm is loaded and operable:

We disagree with the reasoning in Ochoa [182 AD3d 410, 1st Dept 2020] only to the extent that it held that all convictions of criminal possession of a weapon in the second degree for possessing a loaded firearm are not armed felonies. It is apparent that where a defendant possesses a firearm that is actually loaded with ammunition and is capable of being fired, he or she possesses a deadly weapon and is guilty of an armed felony offense. We conclude that it is appropriate to look at the particular facts of each case to determine whether the defendant is guilty of an armed felony. For example, a person is guilty of robbery in the first degree under Penal Law § 160.15 (2) when he or she commits a robbery while armed with a deadly weapon, which, as noted, includes a switchblade knife or a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged (§ 10.00 [12]). To determine if the defendant committed an armed felony, courts look to the definition of deadly weapon as that phrase is used in the definition of armed felony, which excludes knives. Thus, where a defendant is convicted of robbery in the first degree for the use of a knife, that is not an “armed felony” … . Where, however, the robbery is committed with a loaded, operable firearm, it is an “armed felony” (see People v Jiminez, 165 AD2d 692, 692-693 [1st Dept 1990] … ). In Jiminez, the Court held that “[s]ince defendant pleaded guilty to committing first degree robbery while armed with a pistol he was properly sentenced as an armed felony offender” … , despite the fact that a first-degree robbery conviction is not always an armed felony. Just as courts look to the definition of deadly weapon as that phrase is used in the definition of armed felony to determine that knives are excluded therefrom, so too should courts look to whether the firearm fits within that definition, i.e., a firearm that is actually loaded and capable of being fired. People v Meridy, 2021 NY Slip Op 02894, Fourth Dept 5-7-21

 

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