NY Penal Law § 265.01: Criminal possession of a weapon in the fourth degree

New York has several different offenses related to possessing guns and other weapons. Criminal possession of a weapon in the fourth degree is one of the least serious weapons crimes. Under New York Penal Code § 265.01, criminal possession of a weapon in the fourth degree, you would have committed a misdemeanor if you possess any of the weapons specifically mentioned in the statute. In addition, you will also violate this statute if you do any of the following:

• you possess a dangerous or deadly weapon such as a dagger or a razor with the intent to use it unlawfully against another person
• you have been convicted of a felony and you possess a muzzle-loading gun
• you possess a dangerous or deadly weapon and you are not a U.S. citizen
• you have been deemed no longer suitable to possess a weapon and you fail to turn it over to the authorities
• you possess a bullet containing explosive substance designed to detonate on impact
• you possess armor-piercing rounds intended for unlawful use

The police respond to a report of a domestic violence incident. Upon arriving at the home they find a man and a woman. The woman explained that she and the man had a heated argument and that she was afraid because the man had a gun. The police asked the man to produce the gun. The man produced a semi-automatic weapon from the closet. The man explained that he was previously a peace officer, licensed to have such a weapon. However, as he no longer was a peace officer he no longer had the authority to possess such a weapon. Therefore, the man could be prosecuted for criminal possession of a weapon in the fourth degree under New York Penal Code § 265.01(6).

1. Criminal possession of a firearm: New York Penal Code § 265.01-b

If the police uncovered the weapon during a search, one possible defense is to challenge the search that uncovered the weapon as unlawful. There are rules that the police must follow in order to stop and search someone's person, home or car. If the police do not follow such rules a court may find that the search was unlawful. If that happens the prosecutor may have no choice but to dismiss the case against you.

In addition, if you are able to challenge any of the elements of the crime, then you would be able to weaken the prosecutor's case. For example, under New York Penal Code § 265.01(2) the prosecutor must prove not only that you possessed a prohibited weapon, but also that you had the intent to use it against another person.

Because criminal possession of a weapon in the fourth degree is a class A misdemeanor if convicted you could be sentenced to up to 1 year in jail. It is also possible that that the judge will opt to not send you to jail, or only send you to jail for a short period, and instead sentence you to a probation term of 3 years. If you are placed on probation there will be several rules that you will be required to follow, including regularly reporting to your probation officer, refraining from possessing firearms and staying away from people who are known criminals. If you fail to follow the rules your probation may be revoked and you may be sent to jail.

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

1. He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star"; or

2. He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another; or

3. He possesses a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm, and has been convicted of a felony or serious offense; or

4. He possesses any dangerous or deadly weapon and is not a citizen of the United States; or

5. He is a person who has been certified not suitable to possess a rifle or shotgun, as defined in subdivision sixteen of § 265.00, and refuses to yield possession of such rifle or shotgun upon the demand of a police officer. Whenever a person is certified not suitable to possess a rifle or shotgun, a member of the police department to which such certification is made, or of the state police, shall forthwith seize any rifle or shotgun possessed by such person. A rifle or shotgun seized as herein provided shall not be destroyed, but shall be delivered to the headquarters of such police department, or state police, and there retained until the aforesaid certificate has been rescinded by the director or physician in charge, or other disposition of such rifle or shotgun has been ordered or authorized by a court of competent jurisdiction.

6. He knowingly possesses a bullet containing an explosive substance designed to detonate upon impact.

7. He possesses any armor piercing ammunition with intent to use the same unlawfully against another.

While criminal possession of a weapon in the fourth degree is a misdemeanor and not a felony, if convicted you may end up in jail for up to a year and you will definitely end up with a permanent criminal record that includes a weapons offense. 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.