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New York Penal Law S 265.02

New York Penal Law S 265.02 on Criminal possession of a weapon in the third degree, states that: A person is guilty of criminal possession of a weapon in the third degree when:

(1) Such person commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; or

(2) Such person possesses any explosive or incendiary bomb, bombshell, firearm silencer, machine-gun or any other firearm or weapon simulating a machine-gun and which is adaptable for such use; or

(3) Such person knowingly possesses a machine-gun, firearm, rifle or shotgun which has been defaced for the purpose of concealment or prevention of the detection of a crime or misrepresenting the identity of such machine-gun, firearm, rifle or shotgun; or

(5) (i) Such person possesses three or more firearms; or (ii) such person possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this chapter within the five years immediately preceding the commission of the offense and such possession did not take place in the person’s home or place of business; or

(6) Such person knowingly possesses any disguised gun; or

(7) Such person possesses an assault weapon; or

(8) Such person possesses a large capacity ammunition feeding device. For purposes of this subdivision, a large capacity ammunition feeding device shall not include an ammunition feeding device lawfully possessed by such person before the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision, that has a capacity of, or that can be readily restored or converted to accept more than seven but less than eleven rounds of ammunition, or that was manufactured before September thirteenth, nineteen hundred ninety-four, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition; or

(9) Such person possesses an unloaded firearm and also commits a drug trafficking felony as defined in subdivision twenty-one of section 10.00 of this chapter as part of the same criminal transaction; or

(10) Such person possesses an unloaded firearm and also commits any violent felony offense as defined in subdivision one of section 70.02 of this chapter as part of the same criminal transaction. Criminal possession of a weapon in the third degree is a class D felony.

Some of the terms used in this definition have their own special meaning in our law. I will now give you the meaning of the following terms: “assault weapon” “possess,” and “knowingly.”

“Assault weapon” means

(a) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least two of the following characteristics: (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a bayonet mount; (iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; (v) a grenade launcher; or

(b) a semiautomatic shotgun that has at least two of the following characteristics: (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a fixed magazine capacity in excess of five rounds; (iv) an ability to accept a detachable magazine; or

(c) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least two of the following characteristics: (i) an ammunition magazine that attaches to the pistol outside of the pistol grip; (ii) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (iii) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned; (iv) a manufactured weight of fifty ounces or more when the pistol is unloaded; (v) a semiautomatic version of an automatic rifle, shotgun or firearm; or

(d) any of the weapons, or functioning frames or receivers of such weapons, or copies or duplicates of such weapons, in any caliber, known as: (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models); (ii) Action Arms Israeli Military Industries UZI and Galil; (iii) Beretta Ar70 (SC-70); (iv) Colt AR-15; (v) Fabrique National FN/FAL, FN/LAR, and FNC; (vi) SWD M-10, M-11, M-11/9, and M-12; (vii) Steyr AUG; (viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and (ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12;

(e) provided, however, that such term does not include: (i) any rifle, shotgun or pistol that (A) is manually operated by bolt, pump, lever or slide action; (B) has been rendered permanently inoperable; or (C) is an antique firearm as defined in 18 U.S.C. 921(a)(16); (ii) a semiautomatic rifle that cannot accept a detachable magazine that holds more than five rounds of ammunition; (iii) a semiautomatic shotgun that cannot hold more than five rounds of ammunition in a fixed or detachable magazine; (iv) a rifle, shotgun or pistol, or a replica or a duplicate thereof, specified in Appendix A to section 922 of 18 U.S.C. as such weapon was manufactured on October first, nineteen hundred ninety-three. The mere fact that a weapon is not listed in Appendix A shall not be construed to mean that such weapon is an assault weapon; or (v) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or any of the weapons defined in paragraph

(d) of this subdivision lawfully possessed prior to September fourteenth, nineteen hundred ninety-four.

The assault weapon need not be loaded, but it must be operable. To be operable, an assault weapon must be capable of discharging ammunition. POSSESS means to have physical possession or otherwise to exercise dominion or control over tangible property.

A person KNOW INGLY possesses an assault weapon when that person is aware that he or she is in possession of such weapon..

NY PL 265.02(2) is violated where you knowingly possess certain weapons, including any firearm, and that firearm is defaced for the purpose of hiding a crime or misrepresenting the identification of that firearm. Defacing may include modifying, scratching of parts of or the removing of serial or other identifying numbers of a firearm.

If you possess three or more firearms (handgun, pistol, revolver, etc.) without a proper license or you possess a firearm and you have been previously convicted of a felony or a class “A” misdemeanor within the five years immediately preceding the commission of the offense and such possession did not take place in the person’s home or place of business, you are guilty of this subsection.

Criminal possession of a weapon in New York City is a serious crime. A true criminal possession of a weapon case in New York should not be confused with a case in which a person is charged with criminal possession of a weapon, but the underlying case is really bigger.

For example, a person charged with attempted murder (using a gun) may be charged with criminal possession of a weapon as well as the attempted murder. The attempted murder charge is likely to be far more serious and carry with it a far more serious sentence than the additional charge of criminal possession of a weapon.

Thus if you have been arrested of criminal possession of a weapon, contact a New York Criminal Defense Attorney at Stephen Bilkis and Associates, they have wide experience on cases involving criminal possession of a weapon. Visit us at our offices in New York Metropolitan for free legal consultation.

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