NY Penal Law § 265.02: Criminal possession of a weapon in the third degree

There are 4 offenses in the New York Penal Code related to unlawfully possessing a weapon. A weapon is defined as not only a gun, but also as other dangerous or deadly instruments such as a switchblade knife, blackjack or razor. You would have committed the crime of criminal possession of a weapon in the third degree as described in New York Penal Code § 265.02 if you

• commit criminal possession in a weapon in the fourth degree and you also have been convicted of any crime in the past,
• possess a bomb, silencer, or machine gun,
• knowingly possess a machine gun, or firearm that has been altered so that it can be concealed,
• possess 3 or more firearms,
• possess a firearm, and has committed a felony or class A misdemeanor in the past five years,
• possess a disguised gun,
• possess an assault weapon,
• possess a large capacity ammunition feeding device,
• possess an unloaded firearm and commit a drug-trafficking offense, or
• possess an unloaded firearm and commit any violent felony offense

A man's girlfriend contacted the police and reported that the man had a number of guns including a Glock pistol and an AR–15 assault rifle. The police asked the girlfriend to lure the man to a location. When the man arrived at the location he was immediately apprehended. The officers found an AR-15 assault gun along with ammunition in his car. Upon executing a search warrant on the man's apartment, the officers recovered additional guns and ammunition. Based on finding more than 3 guns as well as an assault weapon, the man could be prosecuted for criminal possession of a weapon in the third degree.

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

If the police uncovered the weapon during a search, one way to defend a charge of criminal possession of a weapon in the third degree 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 or someone's home. 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.

Because criminal possession of a weapon in the third degree is a class D felony if you are convicted your possible sentence will be up to 7 years in prison. Because this crime is also classified as a violent felony offense you will be sentenced to at least 2 years in prison. You actual sentence will depend on a number of factors including your prior criminal history. If you have been previously convicted of a felony your sentence will be longer than if this is your first offense.

In addition there may be financial consequences to a criminal possession of a weapon in the third degree. The judge may order you to pay a fine, and you will have to be various fees associated with being convicted of a crime in New York.

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

1. Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of § 265.01, and has been previously convicted of any crime; or

2. Such person possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or

3. Such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun; or

4. (i) Such person possesses three or more firearms; or (ii) such person possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this chapter within the five years immediately preceding the commission of the offense and such possession did not take place in the person's home or place of business; or

5. Such person knowingly possesses any disguised gun; or

6. Such person possesses an assault weapon; or

7. Such person possesses a large capacity ammunition feeding device.

   For purposes of this subdivision, a large capacity ammunition feeding device shall not include an ammunition feeding device lawfully possessed by such person before the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision, that has a capacity of, or that can be readily restored or converted to accept more than seven but less than eleven rounds of ammunition, or that was manufactured before September thirteenth, nineteen hundred ninety-four, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition; or

8. Such person possesses an unloaded firearm and also commits a drug trafficking felony as defined in subdivision twenty-one of § 10.00 of this chapter as part of the same criminal transaction; or

9. Such person possesses an unloaded firearm and also commits any violent felony offense as defined in subdivision one of § 70.02 of this chapter as part of the same criminal transaction.

Because criminal possession of a weapon in the third degree is classified as a violent felony offense, if convicted you will end up in prison for at least 2 years. However, there may be defenses that could result in the charges being dropped or reduced. It is important that you are represented by an attorney who is familiar with weapons offenses and understands how to apply any available defenses. 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.