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Are Byrna and Other Less-Lethal Weapons Legal in New York?

In recent years, products like the Byrna launcher—a CO₂-powered less-lethal device that fires kinetic or chemical projectiles—have become increasingly popular among people looking for self-defense alternatives. But the legality of these devices in New York State is not straightforward. While state law treats them differently than firearms, local restrictions, especially in New York City, make the picture much more complicated.

In this article, we break down where Byrna and similar devices stand under New York and federal law, and how recent court decisions may affect their future legality. If you’d like to hear me discuss this issue directly, you can watch my short explainer video here:
👉 Watch the video

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A recent appeal from Tompkins County shows how quickly a violent-felony indictment can turn into a long prison term—and how limited your options become once you plead guilty. The defendant, accused of taking part in a rolling gunfight that ended with a deadly crash, eventually accepted a plea to manslaughter in the second degree and criminal possession of a weapon in the second degree. Although he later challenged the indictment and the use of his hospital-room statements, the Appellate Division upheld the conviction and the five-to-fifteen-year sentence. If you are facing serious charges in New York, this ruling offers hard-earned guidance on what to contest, when to contest it, and why clear, early strategy matters.

The indictment contained nine counts, ranging from reckless endangerment to homicide. After rejecting an initial offer and losing a suppression motion, the defendant chose to plead on the morning trial was set to begin. On appeal he argued that the weapons count was jurisdictionally defective, that the state’s licensing statute is unconstitutional, and that his statements should have been suppressed because he was injured and asked for a lawyer. None of those claims succeeded, largely because of the legal standards that apply once you accept a negotiated plea.

First, the court dealt with the indictment. A New York indictment is invalid only when it omits an essential element of a charged crime or describes conduct that is not criminal. The defendant claimed the weapon count failed to distinguish between his driveway—arguably private space not covered by the statute—and the public roads where the shootout occurred. He also said the indictment never alleged that he lacked a pistol license. The court called the driveway argument a matter of evidence, not jurisdiction, and ruled that the license issue was satisfied because the count cited the exact Penal Law provision, which by definition requires the firearm to be unlicensed. For anyone accused of a gun offense, the lesson is simple: if a count references the governing statute and tracks its language, a court will likely label it valid. You must raise evidentiary challenges through motions or at trial; waiting until appeal almost always forfeits them.

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Getting stopped while driving with a suspended license can feel like the end of the road. Your first instinct may be to panic—Will you go to jail? Do you have a defense? Two recent appeals, People v. Willis and People v. Martinez-Fernandez, show that prosecutors still have to prove key facts—even if you admit your license was suspended. Understanding what those facts are can help you decide on your next move and avoid pleading to a charge the State can’t support.

In both cases, drivers were charged with “Aggravated Unlicensed Operation in the Third Degree,” or AUO 3rd for short. That offense requires the State to prove two things: (1) you drove when your license was already suspended, and (2) you knew or had reason to know about that suspension. The defendants argued their misdemeanor complaints—the official paperwork that starts a criminal case—were defective because they didn’t spell out how the police knew the drivers had notice of the suspensions. The Court disagreed, ruling that the complaints were “facially sufficient.” Here’s why that matters to you.

What Is “Facial Sufficiency” and Why Should You Care?

Before your case can move forward, the prosecution must file a sworn document—usually a misdemeanor complaint or misdemeanor information—laying out basic facts to show reasonable cause that you broke the law. Think of it as the prosecutor’s opening pitch. If that document is missing essential details, an attorney can ask the judge to dismiss it before things get worse. A dismissal on this ground doesn’t decide guilt or innocence, but it does force the State to start over or drop the charge altogether.

In AUO 3rd cases, the complaint must show more than the “Driver had a suspended license.” It must also allege facts that support the idea you knew about the suspension. Without that, the complaint is vulnerable to attack.

How the State Met the Standard in Willis and Martinez-Fernandez

Both drivers had multiple unpaid traffic tickets. New York traffic summonses carry bold language that says: “If you do not answer this ticket within 15 days, your license will be suspended.” The officers swore that:

  • They personally issued or saw the tickets on the DMV computer,
  • They knew the standard warning printed on every ticket, and
  • The DMV automatically suspends a license within four weeks if the driver ignores the summons.

The court said those details were enough to “reasonably” infer that each driver had notice. Even though the officers didn’t recall handing every ticket directly to the motorist, common sense supports the idea that at least one summons reached the driver’s hands. That was sufficient to keep the case alive.

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When a judge warns that losing at trial could mean forty-five years behind bars for a series of burglary charges, even the most confident defendant will think twice about exercising the right to a jury. That was the scenario facing twenty-three-year-old Marquese Scott, who accepted a six-to-eight-year offer on three second-degree burglary charges. Recently, the New York Court of Appeals ruled that his plea was not knowing, voluntary, or intelligent because the court overstated the maximum lawful sentence by twenty-five years. The ruling teaches prosecutors, judges, defense lawyers—and anyone charged with a felony—that accuracy is everything when liberty is on the line.

How an Erroneous “Worst Case” Skewed the Decision

Scott stood accused of three burglaries. Each Class C felony carries up to fifteen years, but Penal Law § 70.30(1)(e)(i) caps the combined term at twenty. During the plea colloquy, however, the judge told Scott three separate times that consecutive sentences could total forty-five years. Neither counsel nor the prosecutor corrected the mistake. Confronted with what sounded like an almost half-century exposure, Scott took the plea immediately—only to have the sentencing judge later impose fifteen years after concluding he had not fully accepted responsibility.

Why the Court of Appeals Stepped In

On appeal, Scott’s new counsel argued that the plea was invalid because it rested on patently false information. The prosecution countered that the claim was unpreserved; Scott had never moved to withdraw his plea or filed a CPL 440.10 motion. The Court of Appeals disagreed, applying its “no practical ability to object” exception. When the error is clear on the face of the record and the defendant had no reason to doubt the court’s assertion, preservation is not required. It was unreasonable to expect a young defendant to challenge the judge’s confident, repeated statement of the law.

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In a recent case before a New York criminal court, a police officer followed a suspect from the public street into her driveway when he suspected that she was driving while impaired. The officer asked the suspect to step out of her garage after she parked her vehicle. At that point, he conducted field sobriety tests and arrested the defendant for driving while intoxicated (DWI). At issue before the court on appeal was whether the officer had the legal right to enter the defendant’s property to question and then arrest her.

The Fourth Amendment

Under the Constitution’s Fourth Amendment, we all have the right to privacy and to security in our own homes and the right against unreasonable searches and seizures. According to case law, “the Fourth Amendment has drawn a firm line at the entrance to the house,” which means that only in rare circumstances can an officer enter a person’s private property without either consent or a valid warrant. A person’s house, as well as the area immediately surrounding it, fall under the protective umbrella of the Fourth Amendment.

The Court’s February 2025 Decision

Even given the important protections provided by the Fourth Amendment, the court in this case ruled that the officer did have the right to arrest the defendant outside of her garage. This was the case for several reasons: first, the suspect agreed voluntarily to exit her garage and speak with the officer. Second, the officer reached the defendant’s garage by way of public roads. The defendant’s driveway did not make any indication that she expected privacy outside of her garage. Instead, there was “unobstructed access” to the driveway, leading the officer to believe that he could enter the driveway without incident.

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In the state of New York, case law is clear that police officers have the right to approach parked cars for any “objective, credible reason.” This gives officers significant leeway to at least approach vehicles that are stopped and parked. When, though, can the officer demand that the car’s occupant step out of the vehicle?

According to a New York case called People v. Eugenio:

“[w]here .. a vehicle is lawfully parked on the street and neither it nor its occupant is under any restraint, and the police have no grounds to suspect the occupant of criminality at that point, requesting the occupant to step out of the vehicle creates a new, unauthorized restraint.”

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In New York, it is well established that to legally stop a vehicle, a police officer must have reasonable suspicion, based on objective evidence, that the car’s occupants were involved in a crime. Courts go back and forth on what it means for an officer to have “reasonable suspicion.” If an officer knows that an area has high crime rates, does this knowledge alone give the officer the required “reasonable suspicion” to stop a vehicle?

A recent opinion published by a New York court affirms that an officer’s general knowledge of crime in an area is insufficient to establish reasonable suspicion on its own. In the case, a police officer went to a residence in Queens after reports of an alleged burglary. The 911 call indicated that two men were entering the back of the residence. The officer arrived at the scene and noticed a car in front of the house. The car that was at the residence left the home upon the officers’ arrival. Officers followed the car, stopped and searched the car, and arrested the driver for carrying concealed weapons in the vehicle.

Upon further review, however, the court learned that the officers did not have legal grounds to stop the car. The car’s driver was a female, whereas the burglary suspects were both males. There was nothing indicating that the driver might have been involved in the burglary, and it was not enough for the officers to cite the fact that the neighborhood was a high crime area.

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During litigation, it is common for one party to have an expert testify in support of their case. In criminal cases, the state will sometimes try to qualify an arresting police officer as an expert in a certain area, which can bolster the officer’s credibility before the court. What does it take to be qualified as an expert in New York criminal cases? And what does this mean for defendants fighting criminal charges?

New York Case Law

A New York case called People v. Cronin sets out the following standard for expert testimony:

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In the state of New York, it is well established that when police officers have a valid warrant from a judge, they are legally allowed to search a resident’s private property whether the resident likes it or not. What happens, though, if the officers do not have a warrant? Can they still get permission to search by asking for consent of the person living in the home?

New York Case Law’s Answer

In answering this question, New York case law is clear:

“‘[T]he police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question.'”

Put another way, if a police officer asks for permission to enter a private home, and if a person with “authority” tells him he can search the home, the officer can do so legally. A person with “authority” could be an owner or a resident of the home, whether that person is the suspect of the crime at issue or not. If, however, the officer wants to search a private bedroom, a resident without access to that bedroom might not have the requisite “authority” to let the officer enter. The burden is on the Police and the Prosecutor to establish that there was voluntary consent.

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As we have often discussed, one powerful tool that criminal defense attorneys can employ is the motion to suppress incriminating evidence. When a trial court grants a defendant’s motion to suppress, the jury never sees the evidence that the defendant has asked the court to keep out of the trial record. These motions, when successful, can make all the difference for defendants in New York, and they often help defendants win their cases.

How do you know if you, as the defendant, should be filing a motion to suppress? There are several flags that should alert you that there might be grounds for the trial court to suppress incriminating evidence in your case. These include: an unlawful encounter with the police, an officer’s failure to give Miranda warnings, errors in a field sobriety test, and problems with how the State handles evidence before it is admitted in court.  Generally, if the prosecutor wishes t0 use incriminating statements, physical evidence or a police arranged identification as evidence at trial, an experienced criminal defense lawyer will include a request for suppression of that evidence as part of their omnibus motion.

It is also true that if you think there might be a chance the court could grant your motion to suppress, it is often better to present the motion than to hold back. In a recent case before a New York court, the defendant appealed her guilty verdict, arguing she received ineffective assistance of counsel when her attorney failed to file a motion to suppress that could have been successful. The court granted the defendant’s appeal, concluding that the defendant’s attorney failed her by not asking the court to suppress evidence that investigators found in a search that might have exceeded the scope of their warrant.

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