NY Penal Law § 265.03: Criminal possession of a weapon in the second degree

Of the four criminal possession of a weapon charges in the New York Penal Code, criminal possession of a weapon in the second degree is one of the most serious. It does not involve possessing weapons such as switchblades or razors. You can only be convicted of this crime if you possess a firearm or a gun. Under New York Penal Code § 265.03, it is illegal to possess a machine gun, a loaded firearm, a disguised gun with the intent to use it in an unlawful manner, or to possess 5 or more firearms. The statute specifically permits possession of a loaded firearm in your home or place of business.

A man came into possession of a loaded gun and showed it to his cousin. The gun accidentally went off injuring the cousin in the leg. The man discarded the gun in a nearby dumpster and took his cousin to the hospital. At the hospital the man initially told staff that the cousin was mugged. He later admitted that he was the one who shot the cousin, but it was an accident. The man was charged with criminal possession of a weapon. A jury could conclude that even though the man claimed that he had no intent to use it in an unlawful manner, that he did indeed possess it with the intent to use it in an unlawful manner because he discarded it and lied about it after he shot his cousin.

1. Criminal possession of a firearm: New York Penal Code § 265.01-b
2. Criminal use of a firearm in the second degree: New York Penal Code § 265.08

The statute specifically states that a defense to a charge of criminal possession of a weapon in the second degree based on possessing a loaded weapon is that the loaded firearm was in your home or business.

If the police discovered a firearm in your car during a traffic stop, that traffic stop must have been lawful. This means that the police must have had probable cause to stop you. For example, if you were breaking a traffic law such as speeding or failing to stop at a red light, then the police would have a lawful reason to stop you. Otherwise, the traffic stop would be unlawful and any evidence uncovered from the stop would be inadmissible. In such a case the prosecutor may have no choice but to decline to prosecute you.

Criminal possession of a weapon in the second degree is a class C felony. If you are convicted the judge can sentence you to up to 15 years in prison. Furthermore, because it is also classified as a violent felony offense, the minimum prison sentence that you will receive is 3 1/2 years. In other words, the judge will not have the option of sentencing you to just probation. In addition, you may be required to pay a fine and you will be required to pay mandatory fees.

A person is guilty of criminal possession of a weapon in the second degree when:

1. with intent to use the same unlawfully against another, such person:
   1. possesses a machine-gun; or
   2. possesses a loaded firearm; or
   3. possesses a disguised gun; or
2. such person possesses five or more firearms; or
3. such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of § 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person's home or place of business.

The consequences of being convicted of second degree criminal possession of a weapon is that you will have to spend time in prison and you may have to pay a steep fine. However, an experienced attorney will have the knowledge and skill to mount an aggressive defense against the charge. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with gun crimes, grand larceny, white collar crimes, and other serious crimes. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.