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NY Penal Law § 265.03: Criminal possession of a weapon in the second degree

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 265.03: Criminal possession of a weapon in the second degree

Among the four charges covering criminal possession of a weapon that are listed in the New York Penal Code, criminal possession of a weapon in the second degree is one of the most serious. This charge does not cover possessing weapons such as switchblades or razors. You can be convicted of this crime only if the weapon you possess is a firearm or a gun.  It is illegal under New York Penal Code § 265.03 to possess a machine gun, a loaded firearm, a disguised gun with the intent to use it in an unlawful manner.  Under this code, it is also illegal to be in possession of 5 or more firearms. The statute expressly permits the possession of a loaded firearm in your home or place of business.


For Example

A man had just come into possession of a loaded gun.  He showed the gun to his cousin. While he was doing so, the gun accidentally went off, injuring his cousin in the leg. The man panicked and decided to discard the gun in a nearby dumpster before rushing his cousin to the hospital. At the hospital, the man initially reported to the staff there that the cousin was mugged. He later confessed that he was the one who shot his cousin, but that it was an accident. The man was arrested and charged with criminal possession of a weapon. A jury could come to the conclusion that even while the man claimed that he had no intent to use it in an unlawful manner, that he did indeed possess it with the intent to use it in an unlawful manner as evidenced by the fact that he discarded the gun and lied about the circumstances under which his cousin was shot. 


Offenses that are Related

Criminal use of a firearm in the second degree: New York Penal Code § 265.08

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


Possible Defenses

This statute specifically says that the fact that the loaded firearm was in your home or business is a defense against a charge of criminal possession of a weapon in the second degree on the basis of possessing a loaded weapon.


If the police found a firearm in your vehicle during a traffic stop, that traffic stop must have been lawful. In other words, the police must have had probable cause to stop your vehicle. For instance, if you were violating a traffic law such as speeding or failing to stop at a red light, then the police would have a lawful reason to stop you. Apart from that, the traffic stop would be unlawful and any evidence found in a search performed at the stop would be inadmissible in court. In such a case, the prosecutor may have no option but to vacate the charges against you.



Criminal possession of a weapon in the second degree is categorized as a class C felony. Should you are convicted of this crime, the judge can sentence you to up to 15 years in prison. Moreover, because it is also classified as a violent felony offense, the minimum prison sentence that you could possibly receive is 3 1/2 years. What this means is the judge will not have the option of sentencing you to mere probation. On top of that, you may be required to pay a fine and you will be required to pay mandatory court fees.



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