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

June 25, 2020 Federal Criminal Attorneys

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

New York has numerous criminal offenses related to possessing guns and other weapons. Criminal possession of a weapon in the fourth degree is among the least egregious weapons crimes. You would have committed a misdemeanor under New York Penal Code § 265.01, criminal possession of a weapon in the fourth degree if you are in possession of any of the weapons specifically mentioned in the statute. Additionally,  you will be in violation of this statute if you do any of the following:

 

  • you have a dangerous or deadly weapon in your possession, 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 have a muzzle-loading gun in your possession
  • you are in possession of a dangerous or deadly weapon and you are not a U.S. citizen
  • you have been deemed no longer eligible to lawfully possess a weapon and you fail to turn a weapon in your possession over to the authorities
  • you are in possession of a bullet containing explosive substance designed to detonate on impact
  • you have armor-piercing rounds in your possession that are intended for unlawful use

 

For Example

Police respond to a report of a domestic violence occurrence. When they arrive at the home, they find a man and a woman inside. The woman explained that she and the man had a bad altercation and that she was in fear because the man had a gun. The police requested that the man produce the gun. The man produced a semi-automatic weapon which was in the closet. The man explained that he had previously been a peace officer, and that he was licensed to have such a weapon in his possession. Nevertheless, as he no longer worked as a peace officer, he no longer had the authority to possess this kind of weapon. Thus, the man could face prosecution for criminal possession of a weapon in the fourth degree under New York Penal Code § 265.01(6).

 

Offenses that are Related

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

 

Possible Defenses

If the police discovered the weapon during a search, one plausible defense is to challenge the search that uncovered the weapon as unlawful. Pursuant to the law, in order to conduct a search, whether it is a search of your car, apartment or office, the police must demonstrate that they had probable cause to do so. If it is determined that the search was unlawful, anything which the search produced, including illicit drugs, would be inadmissible in court and your case would likely be dismissed.

 

Alternatively, if you are able to challenge any of the individual elements of the crime, then you would be able to weaken the prosecutor’s case. For instance, under New York Penal Code § 265.01(2) the prosecutor must demonstrate that not only did you possess a prohibited weapon, but also that you had the intent to use it against somebody else.

 

The Sentence

Since criminal possession of a weapon in the fourth degree is a class A misdemeanor, if convicted, you could get sentenced to up to 1 year in jail. It is also possible that the judge will choose to not send you to jail, or send you to jail for a shorter period.  The judge also has the option of sentencing you to a probation term of 3 years. If you are placed on probation, there will be a number of rules that you will be obligated to follow, including consistently reporting to your probation officer, refraining from having firearms in your possession and staying away from individuals who are known criminals. If you do not follow the rules, your probation could get  revoked and you may be sent to jail.

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