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

June 25, 2020 Federal Criminal Attorneys

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

four offenses are listed in the New York Penal Code that are related to unlawfully possessing a weapon. The definition of  “weapon” covers more than just guns. It also encompasses a range of other dangerous or deadly instruments, such as a switchblade knife, blackjack or razor. You will have have committed the crime of criminal possession of a weapon in the third degree as detailed in New York Penal Code § 265.02 if you


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


An Example

A man’s girlfriend reached out to the police to report that the man had numerous guns including a Glock pistol and an AR–15 assault rifle. The police requested that the girlfriend lure the man to a predetermined location. When the man showed up at the location, he was immediately apprehended by police. The officers discovered an AR-15 assault gun along with ammunition when they searched his car. When they executing a search warrant on the man’s apartment, the officers recovered more guns and ammunition. On the basis of finding more than 3 guns as well as an assault weapon, the man could face prosecution for criminal possession of a weapon in the third degree.


Offenses that are Related

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


Possible Defenses

In the event that the police discovered the weapon during a search, one possible defense against a charge of criminal possession of a weapon in the third degree is to challenge the search that revealed 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, would be inadmissible in court and your case would likely be dismissed.



Since criminal possession of a weapon in the third degree is a class D felony, if you get convicted, your possible sentence will be as much as 7 years behind bars. Because this crime is also categorized as a violent felony offense, you must be sentenced to a minimum of 2 years in prison. Your actual sentence will rely on a variety of factors, including your prior criminal history. If you have previously been convicted of a felony offense, your sentence would be longer than if this is your first offense.


Financial consequences are attached to being convicted for criminal possession of a weapon in the third degree as well. The judge may order you to pay a fine on top of other mandatory fees that you will be obligated to pay that are connected to being convicted of a crime in New York. 



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