New York Criminal Possession of a Weapon in the Third Degree (NY Penal Law 265.02)

Criminal Possession of a Weapon in the Third Degree is categorized as a Class D felony, a violent felony, in the state of New York. A class D felony comes with a minimum prison sentence of two years and a maximum sentence of seven years. Criminal Possession of a Weapon in the Third Degree remains a very complicated charge. Due to there are a variety of factors which can lead to being charged under this statute.

Connection to a Fourth-Degree Offense

Criminal possession of a weapon in the fourth degree is a Class A misdemeanor. Violations of this law, when combined with other factors, lead to an increase of the charges to a third-degree offense.

Under criminal possession of a weapon in the fourth degree, numerous different weapons is clearly categorized. Firearms of all variety including black powder cartridge and muzzleloader rifles/pistols fall under a fourth-degree offense. Stun guns, dart pistols, and imitation pistols are also listed in the statute along with various bladed weapons such as machetes, cane swords, switchblades, and more. Impact weapons including blackjacks, metal knuckles, nunchaku, and bludgeon instruments remains illegal to possess. Projectile weapons – wrist-brace slingshots, shuriken, and the like – lack legality as well. Numerous other weapons not listed are also illegal to possess.

The statute also notes lack of United States citizenship, previous convictions for a felony, possession of barred ammunition could create the basis for charges. The fourth-degree possession statute encompasses many violations.

Increasing the Charge Based on Circumstances

A charge of criminal possession of a weapon in the fourth degree is a serious charge to be sure. But the penalties for third-degree possession are much more severe. A person who has committed what would “normally” be a fourth-degree offense could be increased to a third degree one if the suspect has been convicted of any crime. The statute clearly states “any crime,” which means even a non-violent misdemeanor affects the charges. In some instances, the only difference between a fourth or third-degree charge would be the presence or absence of a previous conviction.

A third-degree charge could be levied against a person regardless of any previous convictions. Non-violent crimes may provide the basis for an increase from fourth to the third degree. The specifics of how circumstances of automatic third-degree weapon possession charges is clearly spelled out in the criminal code.

Firearm Violations Leading to Third-Degree Charges

The firearm violations in this statute expand to include:

Silencers and Alterations for Concealment

Possession of a firearm silencer automatically leads to a third-degree possession charge. Silencers are designed to lower and suppress the sound of a discharged firearm. The law makes no distinction between professionally made, and homemade silencers. Possession of a firearm silencer remains a crime.

Defacing or altering a weapon for the purpose of greater concealment brings charges to the third-degree level. Cutting off the barrel of a shotgun or rifle – a sawed-off shotgun – reflects a common example. Cutting the stock off a rifle/shotgun or both the barrel and stock might fall under this delineation. Conceivable, sawing the seven-inch barrel of a revolver down to two-inches violates this statute.

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Legal Scenario: What Would You Do?

Scenario

After a traffic stop in Manhattan, police searched your vehicle and found a loaded unlicensed handgun in the glove compartment. You have no prior criminal record and the firearm belonged to a family member who left it there without your knowledge.

Can I really face up to seven years in prison for a gun that isn't even mine?

Attorney's Answer

Under NY Penal Law 265.02, Criminal Possession of a Weapon in the Third Degree is a Class D violent felony carrying a mandatory minimum of two years and up to seven years in state prison. The prosecution must prove you knowingly possessed the weapon, so the fact that you were unaware the firearm was in your vehicle could form the basis of a strong defense challenging the knowledge element. We would also examine whether the traffic stop and subsequent search were conducted lawfully under the Fourth Amendment, since any constitutional violation could result in suppression of the weapon as evidence. Given the severity of a violent felony conviction and its permanent impact on your record, it is critical to have experienced defense counsel evaluate every angle of your case immediately.

This is general information only. Contact us for advice specific to your situation.

Possession of a Loaded Firearm

Carrying an unloaded firearm is a crime. Carrying a loaded firearm raises the charges to the third-degree level. The law does not mention the weapon must be concealed. Certain states’ statutes allow for legal open carry of firearms. Restrictions may apply in certain jurisdictions. Open carry of a loaded shotgun while hunting obviously is not a crime. The open carry of a shotgun on a city street surely would be.

Defacing Firearm Serial Numbers

To deface, file, or otherwise try and remove or render unreadable the serial numbers or any identifying component on a firearm automatically moves a possession charge up to the third degree. Law enforcement uses serial numbers to trace firearms to their lawful owners, and sellers when used in a crime or stolen. Removing serial numbers can be charged as a felony on both the state and federal level. Anyone in possession of such a marred firearm regardless of age or type of weapon would be in serious legal jeopardy.

Unique Firearm Possession Circumstances