Third Degree Criminal Weapon Possession: New York Penal Code § 265.02

Third degree criminal weapon possession is a Class D 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. A weapon is a gun or other deadly and dangerous instrument such as a razor, a blackjack or a switchblade knife. A person is guilty of the crime of third degree criminal weapon possession when:

1. A person has been convicted of any crime in their past and has committed fourth degree criminal weapon possession;
2. A person has a machine gun, silencer or a bomb;
3. A person knowingly has a firearm or machine gun that has been modified so that it can be concealed;
4. A person has three or more firearms;
5. A person has a firearm and has committed a felony or Class A misdemeanor within the last five years;
6. A person has a disguised gun;
7. A person has an assault weapon;
8. A person has a large capacity ammunition feeding device;
9. A person has a firearm that is unloaded while committing a drug-trafficking offense; or
10. A person has an unloaded firearm and commits any violent felony offense.

Hypothetical Case

Suppose a man’s girlfriend felt threatened that her safety was in jeopardy because her boyfriend owned several weapons including a Glock pistol and an AR-15 assault rifle. The girlfriend cooperated with police and brought her boyfriend to a designated meeting place, a parking lot alongside a small strip mall. When the man arrived, the police apprehended him and searched his vehicle and his person. The police discovered a loaded Glock pistol in his pants pocket and a loaded assault rifle in the back seat of the car. The police obtained a search warrant to search the man’s apartment. Upon gaining access, they discovered five more guns, including another assault weapon. The officers arrested the man and charged him with third degree criminal weapon possession.

Possible Defenses

Lack of probable cause. In the State of New York, probable cause must be present in order to perform a search of an individual’s person, residence, home, car, office, or other property. Probable cause may be invoked when law enforcement officers have reason to believe that a crime had been committed. If probable cause cannot be argued, property and materials found during the unlawful search, such as the weapons in the above scenario, may not be admitted as evidence, removing key elements in support of the prosecuting attorney’s case.

Other lines of defense. 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 a repertoire of proven strategies to help protect the interests of clients charged with various types of weapons possession offenses.

Possible Sentence

Imprisonment. Third degree criminal weapon possession is a Class D felony. If found guilty, the maximum possible sentence is seven years of imprisonment, and because this falls in the category of a violent felony offense, the minimum jail sentence is two 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 adding a monetary fine as part of the sentence, as well as other court-related fees.

NY Penal Code § 265.02: Third degree criminal weapon possession

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

1. That person has a previous criminal conviction and has committed the crime of fourth degree criminal weapon possession as defined in subdivision 1, 2, 3, or 5 of section 265.01;
2. That person has any incendiary bomb, explosive, bombshell, firearm silencer, machinegun, or a simulated machinegun;
3. That person knowingly has a machinegun, rifle or shotgun, or firearm that has been modified for the purpose of concealment or detection by law enforcement;
4. That person has three or more firearms or has a firearm and has been previously convicted of a felony or a Class A misdemeanor within the prior five years and that possession did not occur in the person’s place of business or home;
5. That person knowingly has any disguised gun;
6. That person has an assault weapon;
7. That person has a large capacity ammunition feeding device meeting the conditions of this section of the law;
8. That person has a firearm that is unloaded and at the same time commits a drug trafficking felony as described in subdivision 21 of section 10.00 of this chapter;
9. That person has a firearm that is unloaded and at the same time commits a violent felony as described in subdivision 1 of section 70.02 of this chapter.

Lawyer to Defend Against the Charge of Third Degree Criminal Weapon Possession

To successfully defend against a charge of third degree criminal weapon possession, it is imperative to engage the services of a reputable and experienced defense law firm with a history of effectively protecting clients’ interests and reputations.

The Barry C. Weiss P.C. law firm aggressively defends persons charged with third 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 experienced attorneys who are committed to providing the best defense possible for their clients, designing defenses that may result in reduced or dropped charges.

We can be reached at (212) 785-1300 or newyorkcriminallawyer24-7.com to schedule a no-obligation, free legal consultative meeting to evaluate your case.

Related Offenses

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

1. Criminal firearm possession: § 265.01-b

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