New York Consolidated Laws

N.Y. Penal Law § 265.09 (2026)

Criminal use of a firearm in the first degree

✓ current as of May 2026

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§ 265.09 Criminal use of a firearm in the first degree.
  (1) A person is guilty of criminal use of a firearm in the first
degree when he commits any class B violent felony offense as defined in
paragraph (a) of subdivision one of section 70.02 and he either:
  (a) possesses a deadly weapon, if the weapon is a loaded weapon from
which a shot, readily capable of producing death or other serious injury
may 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 the
contrary, when a person is convicted of criminal use of a firearm in the
first degree as defined in subdivision one of this section, the court
shall impose an additional consecutive sentence of five years to the
sentence imposed on the underlying class B violent felony offense where
the person convicted of such crime displays a loaded weapon from which a
shot, readily capable of producing death or other serious injury may be
discharged, in furtherance of the commission of such crime, provided,
however, that such additional sentence shall not be imposed if the
court, having regard to the nature and circumstances of the crime and to
the history and character of the defendant, finds on the record that
such additional consecutive sentence would be unduly harsh and that not
imposing such sentence would be consistent with the public safety and
would not deprecate the seriousness of the crime. Notwithstanding any
other provision of law to the contrary, the aggregate of the five year
consecutive term imposed pursuant to this subdivision and the minimum
term of the indeterminate sentence imposed on the underlying class B
violent felony shall constitute the new aggregate minimum term of
imprisonment, and a person subject to such term shall be required to
serve the entire aggregate minimum term and shall not be eligible for
release on parole or conditional release during such term. This
subdivision shall not apply where the defendant's criminal liability for
displaying a loaded weapon from which a shot, readily capable of
producing death or other serious injury may be discharged, in
furtherance of the commission of crime is based on the conduct of
another pursuant to section 20.00 of this chapter.

Notes of Decisions

Cited in 82 cases (7 in the last 5 years), 1985–2025 · leading case: People v. Molina, 79 A.D.3d 1371 (N.Y. App. Div. 2010).

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People v. Molina, 79 A.D.3d 1371 (N.Y. App. Div. 2010). · cites it 3× “With respect to the charge of criminal use of a firearm in the first degree, the People were obligated to prove that defendant committed a “class B violent felony offense” (Penal Law § 265.09 [1]) and either possessed a loaded weapon (see Penal Law § 265.”

People v. Argueta, 2021 NY Slip Op 03067 (N.Y. App. Div. 2021). · cites it 5× “Criminal use of a firearm in the first degree, however, can be committed anywhere, including in the defendant's home or place of business (Penal Law § 265.09[1][a]). Since the lesser crime requires demonstration of an element or fact not required by the greater, the…”

People v. Jenkins, 2023 NY Slip Op 02031 (N.Y. App. Div. 2023). · cites it 2× “possesses a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged" (Penal Law § 265.09 [1] [a]). "A person is guilty of criminal possession of a weapon in the second degree when[,] .”

People v. Brown, 496 N.E.2d 663 (NY 1986). · cites it 2× “15 [2]), and two counts of criminal use of a firearm in the first degree (Penal Law § 265.09 [2]) by reversing the two weapons counts, and otherwise affirmed.”

People v. Rhodes, 281 A.D.2d 225 (N.Y. App. Div. 2001). · cites it 3× “09 (2), which provides, in pertinent part, that: “Notwithstanding any other provision of law to the contrary, when a person is convicted of criminal use of a firearm in the first degree as defined in subdivision one of this section, the court shall impose an additional…”

People v. Brown, 999 N.E.2d 1168 (NY 2013). “03) and first-degree criminal use of a firearm (Penal Law § 265.09). County Court sentenced him to a prison term of 25 years to life on each second-degree murder conviction, to run concurrently to each other; 25 years on each first-degree robbeiy conviction, to run concurrently…”

People v. Dinsio, 286 A.D.2d 517 (N.Y. App. Div. 2001). · cites it 2× “02” (Penal Law § 265.09 [1]) is satisfied here by the crime of kidnapping in the second degree (see, Penal Law § 135.”

People v. Rodriguez, 821 N.E.2d 122 (NY 2004). · cites it 2× “25) and criminal use of a firearm in the first degree (Penal Law § 265.09). The Appellate Division affirmed, concluding that the use of the alibi notice did not warrant reversal.”

People v. Meadows, 2020 NY Slip Op 1406 (N.Y. App. Div. 2020). “or other firearm" (Penal Law § 265.09 [1] [b]). Meanwhile, counts 3, 4 and 6 of the indictment charged defendant with criminal possession of a weapon in the second degree under Penal Law § 265.”

People v. Elwood, 80 A.D.3d 988 (N.Y. App. Div. 2011). “Defendant correctly argues that the charge of criminal use of a firearm in the first degree constitutes a noninclusory concurrent count of burglary in the first degree and, accordingly, should have been dismissed. The charge of criminal use of firearm in the first degree…”

Erwin Jackson v. Arthur Leonardo, Superintendent of Great Meadow Corr. Facility, 162 F.3d 81 (2d Cir. 1998). “15 [4], and criminal use of a firearm in the first degree, in violation of N.Y. Penal Law § 265.09 (2), each of which stemmed from a 1984 robbery of a jewelry store.”

People v. Shaffer, 486 N.E.2d 823 (NY 1985). “30 [1]) and criminal use of a firearm in the first degree (Penal Law § 265.09 [1]), the crimes of which defendant was convicted.”

Show all 82 citing cases →

— N.Y. Penal Law § 265.09(1)(a) — 1 case

People v. Argueta, 2021 NY Slip Op 03067 (N.Y. App. Div. 2021). “Criminal use of a firearm in the first degree, however, can be committed anywhere, including in the defendant's home or place of business (Penal Law § 265.09[1][a]). Since the lesser crime requires demonstration of an element or fact not required by the greater, the…”

— N.Y. Penal Law § 265.09(2) — 2 cases

People v. Sosa-Marquez, 2019 NY Slip Op 8585 (N.Y. App. Div. 2019).

People v. Douglas, 2021 NY Slip Op 06858 (N.Y. App. Div. 2021).

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