Weapon Crimes

New York takes possession of illegal weapons very seriously. Arrests stemming from violating New York's harsh weapons laws can lead to lengthy prison sentences. It is therefore critical that you contact an experienced New York City weapons crime lawyer any time you find yourself accused of breaking ANY New York weapons law.

New York's weapons laws are codified in New York Penal Code Article 265. Penal Code Section 265.00 defines what makes the item an illegal weapon. Then, other parts of Article 265 discuss what degree of weapons possession the particular item falls under and what the sanctions are for the possession. For example, Penal Code 265.00(4) states that a "switchblade knife" is any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife. So, if a person is found in possession of a knife that meets that definition, then he is in possession of a switchblade knife. Penal Code Section 265.01 states that a person is guilty of Criminal Possession of a Weapon in the Fourth Degree when he possesses...a switchblade knife. Criminal Possession in the Fourth Degree is a class A misdemeanor punishable by up to one year in jail. So if a person knowingly possesses a switchblade knife, he can be sentenced to jail for up to one year. Another example would be with a firearm. A firearm is defined in Penal Code Section 265.00(3)(a) as any pistol or revolver. Penal Code Section 265.03(3) states that a person is guilty of Criminal Possession of a Weapon in the Second Degree when such person possess a loaded firearm outside of his home or place of business. Criminal Possession of a Weapon in the Second Degree is a class C violent felony punishable by a minimum of 3 1/2 years in prison.

While Article 265 has many of the weapons that a layperson would assume are illegal, it also contains examples of household items that many people possess without realizing they are breaking the law. What is legally defined as a "gravity knife" can be an example of one of these household items. A gravity knife is simply defined as a knife with a foldable blade that can be opened with centrifugal force and that locks into place. While this sounds dangerous, that foldable knife that an innocent person purchased from a retail store to help cut boxes in his house, may land him in jail if the screw that keeps it from opening easily is worn down by average wear and tear. What was once a legal tool, is now a weapon punishable by up to a year in jail.

The weapons laws of New York are complicated. Below is an explanation of the most common weapons charges, their applicable sanctions, and what the government needs to prove to sustain a conviction. They are listed in order of severity.

There are defenses that exist to all weapons charges. If you or a loved one has been accused of possessing a any weapon, do no hesitate to contact John Buza, an experienced New York criminal defense attorney and former Manhattan prosecutor, today for a free consultation.

  • Criminal Possession of a Dangerous Weapon in the First Degree

Criminal Possession of a Dangerous Weapon in the First Degree is codified in New York Penal Code Section 265.04. It is a class B violent felony. If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is 5 years and the maximum is 25 years. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 8 years and the maximum is 25 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 10 years and the maximum period is 25 years. In all circumstances, the person is forced to be on parole between 2.5 to 5 years.

There are two subsections for this crime.

265.04(1)
For the government to sustain a conviction for Criminal Possession of a Dangerous Weapon in the First (subsection 1), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person possessed an explosive substance;
  2. the person did so knowingly; and
  3. the person did so with the intent to use it unlawfully against another person or the property of another.

The term explosive substance carries its ordinary definition (i.e. bomb or other incendiary device).

There is a legal presumption that the jury may infer, if it chooses to do so, that any possession of an "explosive substance" is presumptive evidence that the person possessed it with the intent to use it unlawfully against another person or his property.

265.04(2)
For the government to sustain a conviction for Criminal Possession of a Dangerous Weapon in the First (subsection 2), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:
  1. the person possessed 10 or more firearms;
  2. the person did so knowingly; and
  3. the 10 or more firearms were operable.
  • Criminal Possession of a Weapon in the Second Degree

Criminal Possession of a Weapon in the Second Degree is codified in New York Penal Code Section 265.03. It is a class C violent felony. If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is 3 1/2 years in prison and the maximum is 15 years in prison. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 5 years and the maximum is 15 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 7 years and the maximum period is 15 years. If a person has prior felony convictions, he must serve 5 years parole after his sentence is over. If the person has no prior felonies, he must serve 2.5-5 years on parole.

There are five total subsections for this crime.

265.03(1)(a)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Second Degree (subsection 1)(a), the government must prove the following three elements beyond a reasonable doubt. The government must prove:
  1. the person possessed a machine-gun;
  2. the person did so knowingly; and
  3. the person possessed the machine-gun with the intent to use it unlawfully against another.

265.03(1)(b)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Second Degree (subsection 1)(b), the government must prove the following four elements beyond a reasonable doubt. The government must prove:

  1. the person possessed a firearm;
  2. the person did so knowingly;
  3. the firearm was loaded and operable; and
  4. the person possessed the loaded firearm with the intent to use it unlawfully against another.

265.03(1)(c)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Second Degree (subsection 1)(c), the government must prove the following three elements beyond a reasonable doubt. The government must prove:

  1. the person possessed a disguised gun;
  2. the person did so knowingly; and
  3. the person possessed the disguised gun with the intent to use it unlawfully against another.

The term disguised gun means any weapon or devise capable of being concealed on the person from which a shot can be discharged through the energy of an explosive and is designed and intended to appear to be something other than a gun.

There is a legal presumption for these three subsections that states that a jury may infer, but is not legally required to do so, that if the person possessed the weapons in question, he did with the intent to use it unlawfully.

265.03(2)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Second Degree (subsection 2), the government must prove the following three elements beyond a reasonable doubt. The government must prove:

  1. the person possessed 5 or more firearms;
  2. the person did so knowingly; and
  3. that 5 or more of such firearms were operable.

265.03(3)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Second Degree (subsection 3), the government must prove the following four elements beyond a reasonable doubt. The government must prove:

  1. the person possessed a firearm;
  2. the person did so knowingly;
  3. the firearm was loaded and operable; and
  4. the possession of such firearm did not occur in the person's home or place of business.
  • Criminal Possession of a Weapon in the Third Degree

Criminal Possession of a Weapon in the Third Degree is codified in Penal Code Section 265.02. It is a class D felony. Subsections 1-3 are considered non-violent crimes, while subsections 5-8 are designated as violent. There is no minimum period of mandatory incarceration if a person with no prior felony convictions is convicted of subsections one through three. However, the maximum period of incarceration for these subsections is an indeterminate sentence of 2 1/3 - 7 years years. An indeterminate sentence is one in which the person is sentenced to a range and the department of corrections determines how much of that range the person must serve before he is eligible for release. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 2 - 4 years and the maximum is 3 1/2 - 7 years. There is no period of mandatory parole after the person is released from custody.

If a person with no prior felony convictions is convicted of subsections five through eight, the minimum period of incarceration is usually a six-month prison sentence to be followed by a term of five years probation and the maximum is 7 years in prison. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration for these subsections is 3 years and the maximum is 7 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 5 years and the maximum period is 7 years. If a person has prior felony convictions, he must serve 5 years parole after his sentence is over. If the person has no prior felonies, he must serve 1.5-3 years on parole.

Criminal Possession of a Weapon in the Third Degree has 8 subsections:

265.02(1)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Third Degree (subsection 1), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:
  1. the person commits the crime of Criminal Possession of a Weapon in the Fourth Degree as defined in subdivision one, two, three, or five of PL 265.01; and
  2. the person has previously been convicted of a crime.

265.02(2)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Third Degree (subsection 2), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:

  1. the person possessed an 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; and
  2. the person did so knowingly.

265.02(3)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Third Degree (subsection 3), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person possessed a machine-gun, firearm, rifle, or shotgun, which was 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;
  2. the person did so knowingly; and
  3. such machine-gun, firearm, rifle, or shotgun was operable.

265.02(5)(i)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Third Degree (subsection 5)(i), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person possessed a 3 or more firearms;
  2. the person did so knowingly; and
  3. the 3 or more firearms were operable.

265.02(5)(ii)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Third Degree (subsection 5)(ii), the government needs to prove the following five elements beyond a reasonable doubt. The government needs to prove:

  1. the person possessed a firearm;
  2. the person did so knowingly;
  3. such firearm was operable;
  4. the possession of the firearm did not take place in the person's home or place of business; and
  5. the person has previously been convicted of a crime listed in Article 265 of the Penal Code within the five years preceding the commission of the instant offense.

265.02(6)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Third Degree (subsection 6), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:

  1. the person possessed a disguised gun; and
  2. the person did so knowingly.

265.02(7)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Third Degree (subsection 7), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person possessed an assault weapon;
  2. the person did so knowingly; and
  3. the assault weapon was operable.

265.02(8)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Third Degree (subsection 8), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:

  1. the person possessed a large capacity ammunition feeding device; and
  2. the person did so knowingly.

Some of the terms listed above have legal definitions.

  • Criminal Possession of a Weapon in the Fourth Degree

Criminal Possession of a Weapon in the Fourth Degree is codified in New York Penal Code Section 265.01. It is classified as a class A misdemeanor. A person who is convicted of a class A misdemeanor may be sentenced to up to one year in jail.

There are 8 subsections for this crime.

265.01(1)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Fourth Degree (subsection 1), the government needs to prove the following two elements beyond a reasonable doubt. It needs to prove:

  1. the person possessed an operable firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu Star."; and
  2. the person did so knowingly.

The definitions of what classifies as one of these "per se weapons" mentioned above is listed in PL 265.00.

265.01(2)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Fourth Degree (subsection 2), the government needs to prove the following three elements beyond a reasonable doubt. It needs to prove:

  1. the person possessed a dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon;
  2. the person did so knowingly; and
  3. the person possessed the dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with the intent to use it unlawfully against another person.

265.01(4)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Fourth Degree (subsection 4), the government needs to prove the following four elements beyond a reasonable doubt. It needs to prove:

  1. the person possessed a rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm;
  2. the person did so knowingly;
  3. the rifle, shotgun, antique firearm, black powder rifle, black powder shotgun, or any muzzle-loading firearm was operable; and
  4. the person has previously been convicted of a crime.

265.01(5)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Fourth Degree (subsection 5), the government needs to prove the following three elements beyond a reasonable doubt. It needs to prove:

  1. the person possessed any dangerous or deadly weapon;
  2. the person did so knowingly; and
  3. the person is not a citizen of the United States.

265.01(6)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Fourth Degree (subsection 6), the government needs to prove the following three elements beyond a reasonable doubt. It needs to prove:

  1. the person possessed an operable shotgun or rifle;
  2. the person has been properly certified by law as not suitable to possess a shotgun or rifle; and
  3. the person refused to yield possession of the shotgun or rifle upon demand of a police officer.

265.01(7)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Fourth Degree (subsection 7), the government needs to prove the following two elements beyond a reasonable doubt. It needs to prove:

  1. the person possessed a bullet containing an explosive substance designed to detonate on impact; and
  2. the person did so knowingly.

265.01(8)
For the government to sustain a conviction for Criminal Possession of a Weapon in the Fourth Degree (subsection 8), the government needs to prove the following three elements beyond a reasonable doubt. It needs to prove:

  1. the person possessed armor piercing ammunition;
  2. the person did so knowingly; and
  3. the person did so with the intent to use the armor piercing ammunition unlawfully against another.

There are some terms that have specific legal definitions.

"Firearm" means: (a) any pistol or revolver; or (b) a shotgun having one or more barrels less than 18 inches in length; or (c) a rifle having one or more barrels less than 16 inches in length; or (d) any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon as altered, modified, otherwise has an overall length of less than 26 inches; or (e) an assault weapon.

"Armor Piercing Ammunition" means any ammunition capable of being used in pistols or revolvers containing a projectile or projectile core for use in such ammunition, that is constructed entirely, excluding the presence of traces of other substances, from one or a combination of any of the following: tungsten alloys, steel, iron, brass, bronze, beryllium, copper, or uranium.

"Machine-gun" means any weapon of any description, irrespective of size, by whatever name known, loaded or unloaded, from which a number of shots or bullets may be rapidly or automatically discharged from a magazine with one continuous pull of the trigger. The terms also includes what is typically classified as a sub-machine gun.

"Disguised gun" means any weapon or devise capable of being concealed on the person from which a shot can be discharged through the energy of an explosive and is designed and intended to appear to be something other than a gun.

"Firearm silencer" means any instrument, weapon or appliance for causing the firing of any gun, revolver, pistol o other firearms to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearm.

"Large capacity ammunition feeding device" means a magazine, belt, drum, feed strip, or similar device, manufactured after September 13, 1994, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition.

Accusations of Criminal Possession of a Weapon in any degree can be a serious. John Buza is an experienced New York criminal defense attorney and is a former Manhattan prosecutor. Do not hesitate to contact him for a free consultation if you, or a loved one, is accused of this crime.