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Second Degree Criminal Weapon Possession: New York Penal Code § 265.03

Second degree criminal weapon possession is a Class C felony in the State of New York. It is one of four offenses in the Penal Code of New York that relate to possessing a weapon unlawfully, and it is the second most serious. This penal code relates to guns and firearms only. A person is guilty of the crime of second degree criminal weapon possession when:

  1. A person has a disguised gun, a machine gun or a loaded firearm; and
  2. A person intends to use the weapon(s) in an unlawful manner; or
  3. A person has five or more firearms.

This penal code allows possession of loaded firearms in your place of business or home.

Hypothetical Case

Suppose a man was showing his cousin his gun and in the process of loading the gun, the gun fired and hit the cousin’s leg, causing severe injury. The man threw the gun in a nearby dumpster as he quickly drove his cousin to the hospital for emergency medical attention. Initially, the man said that the cousin was mugged by a thug and shot during a robbery attempt. Later, the man admitted that he had shot his cousin in the leg, but that it was an accident. The man was charged with second degree criminal weapon possession because the prosecuting attorney reasoned that the man must have intended to use the weapon in an unlawful manner because he discarded the gun and lied about how his cousin received a gunshot wound.

Possible Defenses

Lack of probable cause. Probable cause must be present in order to perform a search of an individual’s person, residence, home, car, office, or other property in the State of New York. Probable cause may be invoked when law enforcement officers have reason to believe that a crime had been committed. If probable cause cannot be demonstrated, property and materials found during the search may not be admitted as evidence because they were obtained without justification.

Other lines of defense. The penal code allows for a loaded gun in a person’s home or place of business which was the situation in the example above. An additional line of defense would be to challenge any of the evidence presented by the prosecuting attorney in an attempt to undermine the prosecuting attorney’s case. Seasoned defense attorneys who have been involved in many weapons cases have developed a repertoire of proven strategies to help protect the interests of clients charged with various types of weapons possession offenses.

Possible Sentence

Imprisonment. Second degree criminal weapon possession is a Class C felony. If found guilty, the maximum possible sentence is fifteen years of imprisonment, and because this falls in the category of a violent felony offense, the minimum jail sentence is three and a half years. Depending on the details of the felony and if the convicted person had no prior criminal history, the judge may decide to lean toward a more lenient prison sentence.

Monetary Fine. The presiding judge has the option of assessing a monetary fine as part of the sentence, as well as other court-related fees.

NY Penal Code § 265.03: Second degree criminal weapon possession

To recap, a person is guilty of second degree criminal weapon possession when:

  1. That person has a machinegun, a loaded firearm, or a disguised gun and intends to use the weapon unlawfully against another person; or
  2. That person has five or more firearms; or
  3. That person has any loaded firearm, unless the firearm is in the person’s place of business or home.
Lawyer to Defend Against the Charge of Second Degree Criminal Weapon Possession

To actively defend against a charge of second degree criminal weapon possession, it is critical to seek legal counsel from a reputable and experienced defense law firm with a history of successfully protecting clients’ interests and reputations.

The Barry C. Weiss P.C. law firm aggressively defends persons charged with second degree criminal weapon possession, as well as other weapons and firearm misdemeanors and felony crimes in the State of New York, including criminal possession of a firearm, criminal possession of a weapon, and criminal sale of a firearm. The Elliot Adler PC law firm has a team of highly skilled and knowledgeable attorneys who are committed to providing the best defense possible for their clients, mounting defenses designed to result in reduced or dropped charges.

We can be reached at (212) 785-1300 or to schedule a no-obligation, free legal consultative meeting to evaluate your case.

Related Offenses

For additional information, refer to the following sections of the New York Penal Code:

  1. Criminal firearm possession: § 265.01-b
  2. Second degree criminal firearm use: § 265.08
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