Which Is Worse – Possessing Kiddie Porn Or A New 8-Round Magazine? (Corrected)

If you answered “Kiddie Porn” to the question posed in the headline, you are an objective, rational person. If you answered “an 8-round magazine”, you might be a member of the New York State Assembly or State Senate.

Arma Borealis has a very interesting post up that shows how New York State criminal statutes treat such crimes as possessing child pornography, arson, rape, riot, and negligent homicide. They all are classed as a lower-degree offense than the possession of a new greater than 7-round magazine produced after the enactment date of the NY SAFE law. That law treats the magazine possession as a Class D felony.

I just shake my head in disgust at the misplaced priorities of Governor Andrew Cuomo (D-NY) and the state legislators in New York.

CORRECTION: As much as I’d like to believe that the gun prohibitionists in the New York Assembly and State Senate made possession of a greater than 8-round magazine a Class D felony, that is incorrect. Miguel at the Gun Free Zone corrected me on that. It is either a Class B or Class A misdemeanor depending on whether it is a first or subsequent offense and whether it was possessed inside or outside the home. The section of the law in question is below.

I should take this as a reminder to check and double check something that is just too good to be true.

UNLAWFUL POSSESSION OF A LARGE CAPACITY AMMUNITION FEEDING DEVICE IS A
   40  CLASS A MISDEMEANOR.
   41  S 265.37 UNLAWFUL POSSESSION OF CERTAIN AMMUNITION FEEDING DEVICES.
   42    IT SHALL BE UNLAWFUL FOR A PERSON TO KNOWINGLY POSSESS  AN  AMMUNITION
   43  FEEDING  DEVICE THAT SUCH PERSON LAWFULLY POSSESSED BEFORE THE EFFECTIVE
   44  DATE OF THE CHAPTER OF THE LAWS OF TWO  THOUSAND  THIRTEEN  WHICH  ADDED
   45  THIS SECTION, THAT HAS A CAPACITY OF, OR THAT CAN BE READILY RESTORED OR
   46  CONVERTED  TO ACCEPT MORE THAN SEVEN BUT LESS THAN TEN ROUNDS OF AMMUNI-
   47  TION, WHERE SUCH DEVICE CONTAINS MORE THAN SEVEN ROUNDS OF AMMUNITION.
   48    IF SUCH DEVICE CONTAINING MORE THAN  SEVEN  ROUNDS  OF  AMMUNITION  IS
   49  POSSESSED WITHIN THE HOME OF THE POSSESSOR, THE PERSON SO POSSESSING THE
   50  DEVICE  SHALL, FOR A FIRST OFFENSE, BE GUILTY OF A VIOLATION AND SUBJECT
   51  TO A FINE OF TWO HUNDRED DOLLARS, AND FOR A SECOND OFFENSE, BE GUILTY OF
   52  A CLASS B MISDEMEANOR AND SUBJECT TO A FINE OF TWO HUNDRED DOLLARS AND A
   53  TERM OF UP TO THREE MONTHS IMPRISONMENT.
   54    IF SUCH DEVICE CONTAINING MORE THAN  SEVEN  ROUNDS  OF  AMMUNITION  IS
   55  POSSESSED  IN  ANY  LOCATION  OTHER  THAN THE HOME OF THE POSSESSOR, THE
   56  PERSON SO POSSESSING THE DEVICE SHALL, FOR A FIRST OFFENSE, BE GUILTY OF
       S. 2230                            25                            A. 2388

    1  A CLASS B MISDEMEANOR AND SUBJECT TO A FINE OF TWO HUNDRED DOLLARS AND A
    2  TERM OF UP TO SIX MONTHS IMPRISONMENT, AND  FOR  A  SECOND  OFFENSE,  BE
    3  GUILTY OF A CLASS A MISDEMEANOR.


4 thoughts on “Which Is Worse – Possessing Kiddie Porn Or A New 8-Round Magazine? (Corrected)”

  1. John, from my reading of the SAFE Act, it is in fact a Class D Violent Felony to possess an 8-round magazine that was not possessed prior to 4/15/13 (when that portion of the Act becomes effective). So you were right the first time!

    That portion of the Act quoted above only pertains to 8-10 round magazines that were possessed prior to 4/15/13: you can still keep them, but if you load them with more than 7 rounds, it's a violation inside the home in the first instance, and a Class B Misdemeanor in the 2nd instance (or a B and then an A outside the home).

    Moreover, possessing an 8-round magazine obtained after 4/15/13 actually carries a higher sentence than second-degree rape, criminal sexual act in the second degree, first-degree sexual abuse, and third-degree aggravated sexual abuse. All of those Class D Violent Felonies carry a mandatory minimum of 2 years' imprisonment, while possession of the 8-round magazine carries a mandatory minimum of 3.5 years' imprisonment.

    Thank you for pointing out the absurdities of Cuomo's awful new law.

    1. Sure–it's in Section 27(c), defining a class D violent felony offense as including "criminal possession of a weapon in the 3rd degree as defined in subdivision 5, 6, 7, 8, 9 or 10 of section 265.02" of the Penal Law.

      Section 41-b of the bill modifies N.Y.P.L. § 265.02(8), which criminalizes possession of a large capacity ammunition feeding device, but exempts magazines possessed before the effective of the chapter (4/15/13).

      I was wrong about the 3.5-year minimum, though. Section 30 of the bill modifies N.Y.P.L. § 70.02(3)(c) and establishes a minimum sentence of 3.5 years' imprisonment for violation of N.Y.P.L. § 265.02(10) only, which is possession of an unloaded firearm and committing a violent felony offense as part of the same criminal transaction. Otherwise, it's a 2-year minimum, just like for the sex offenses and other horrible crimes that are Class D Violent Felonies.

      –Matt

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