Aggravated or Reckless Discharge
Aggravated or Reckless Discharge
Discharging a weapon in New York is generally illegal unless certain circumstances apply. Conviction for illegal use of a weapon can be quite severe, and convicted defendants could face years in prison as a potential remedy. However, there are circumstances when an aggravated or reckless discharge of a weapon may be a relevant factor in determining the ultimate punishment that’s handed down to a particular defendant.
Basically, if an aggravated or reckless discharge has taken place, the legislatures and courts assume that this has happened during the course of an underlying serious felony, and if this is the case, the defendant could face a longer sentence than what’s advised for conviction of that underlying violent felony.
Below is the statutory language that speaks to aggravated or reckless discharge, but if you face this situation, contact us immediately to schedule an initial consultation as soon as possible.
§ 265.09 Criminal use of a firearm in the first degree.
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 minimum term of an indeterminate 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.
While this statutory language is long in nature, it basically allows the court to decide within its discretion whether or not adding up to five years to a defendant’s sentence is appropriate if a weapon is discharged during the commission of a violent felony. This additional five years would be added to the end of the sentence.
This logic is similar to that of the felony murder doctrine, in that the overt, somewhat secondary act exacerbates the seriousness of the underlying act that is deemed to be a serious crime when viewed individually. Generally, the assumption is that committing a violent felony creates an already-serious degree of danger to those nearby, and discharging a weapon while this is happening only adds to the danger created by the convicted defendant.
If you face this situation, you need to act quickly to defend and enforce your rights. Contact the Blanch Law Firm as soon as possible to schedule an initial consultation.