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Criminal Possession of a Weapon in the Second Degree


NY Criminal Defense and New York Penal Law 265.03 – Criminal Possession of a Weapon in the Second Degree

Criminal Possession of a Weapon in the Second Degree, pursuant to New York Penal Law 265.03, is unquestionably one of the most serious criminal charges that an individual can face in NYC or anywhere in New York. That is right. Even if you have a permit in Colorado, Georgia or Alabama, if you possess than firearm in a hotel room in Manhattan or at JFK or LaGuardia Airports, the crime has still been committed if you do not have a permit in New York. The New York criminal defense attorneys have not only successfully represented clients charged with possessing loaded guns, but prosecuted individuals charged with this crime as Assistant District Attorneys under Robert Morgenthau. The following is a “primer” for those not familiar with this offense and the strict liability it seems to impose on the accused.

The Second Amendment of the U.S. Constitution states: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Gun owners often cite the Second Amendment when arguing against gun restrictions. However, gun owners, dealers, and collectors must follow state and federal laws if they wish possess a firearm, or run a business selling guns. Read on to learn more about state and federal gun laws.

Possession of a weapon is heavily regulated in New York State. In particular, gun control provisions are very strict and became even stricter with the passage of the “New York Secure Ammunition and Firearms Enforcement Act” of 2013. Possession of many types of guns long guns are the main exception as well as various other weapons is a criminal offense, and most such offenses result in a mandatory prison term. Also, it is important to note that gun permits carried by visitors from other states are not recognized in New York State.

Many types of weapons are specified in the state statutes covering “criminal possession of a weapon.” In addition to pistols and revolvers possessed without a valid permit and various other sorts of guns (collectively referred to as “firearms”), the list includes dart guns, stun guns, switchblades, brass knuckles, blackjacks, slingshots, and cane (concealed) swords. Also, it is not only New York State residents who are subject to restrictions with respect to these items: visitors from other states are potentially subject to criminal prosecution if they carry these items into this state.

A person is guilty of Criminal Possession of a Weapon in the Second Degree (NY PL 265.03) when: (1) with the intent or purpose to use the firearm (handgun, pistol, revolver, etc.) you possess a (a) machine gun, (b) loaded firearm (loaded has a much more liberal legal definition than bullets physically in a gun) or (c) a disguised gun; or (2) you possess more than five firearms (it can be different types such as revolver, pistol, etc.) (3) you possess a firearm that is loaded (intent to use unlawfully not required!!). Generally, there is no felony if the possession is in your home or place of business. New York Criminal Possession of a Weapon in the Second Degree is a C violent felony punishable by a minimum of three and on half years and up to fifteen years in state prison.

Make no mistake, a conviction for this offense will land you behind bars for at least a few years to well over a decade. While intent to use the firearm unlawfully is an element of NY PL 265.03(1), it is not an element or requirement under NY PL 265,03(3). In other word just having the loaded firearm (the law does not actually require the bullets to be in the chamber/cartridge/cylinder) without a permit outside your home or place of business without the slightest malicious intent is punishable by at least three and one half years.

Are you involved in a similar offense? Seek the help of a New York Gun Crime Attorney and New York Criminal Defense Attorney at Stephen Bilkis and Associates.

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