Criminal Possession of a Weapon in the Second Degree – NYPL § 265.03

Criminal Possession of a Weapon in the Second Degree - NYPL § 265.03

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New York Penal Law § 265.03: Criminal Possession of a Weapon in the Second Degree encompasses several scenarios, involving the unlawful possession of specific firearms or weapons. Charged as a class C felony, a conviction can have severe consequences, reflecting its serious nature within New York’s legal framework.

Given the gravity of these charges, it is crucial to seek experienced legal representation. Our top-rated Manhattan criminal defense attorneys at Lebedin Kofman LLP are committed to providing comprehensive defense strategies tailored to the unique circumstances of each case, ensuring that their clients’ rights are vigorously protected throughout the legal process.

Related Offenses

Criminal Possession of a Weapon in the First Degree – NYPL § 265.04

Elements and Definitions

To secure a conviction for criminal possession of a weapon in the second degree under NYPL § 265.03, the prosecution must prove beyond a reasonable doubt that the defendant committed one of the following acts:

With intent to use the weapon unlawfully against another person:
- Possessed a machine-gun; or
- Possessed a loaded firearm; or
- Possessed a disguised gun.
Possessed five or more firearms, regardless of intent.
Possessed any loaded firearm. However, possession of a loaded firearm in the individual’s home or place of business is generally exempt from this charge, unless other specific conditions apply.

Key Definitions:

Possession: Defined under Penal Law § 10.00(8), possession can be actual (physical possession) or constructive (dominion or control over the area where the weapon is found).
Firearm: As per Penal Law § 265.00(3), a firearm includes pistols, revolvers, shotguns with barrels less than 18 inches, rifles with barrels less than 16 inches, weapons made from shotguns or rifles with an overall length of less than 26 inches, and assault weapons.
- Machine-Gun: A weapon capable of automatically discharging multiple rounds with a single trigger pull.
- Loaded Firearm: A firearm is considered loaded if it contains ammunition, or if the person possesses ammunition that can be used to discharge the firearm.
- Disguised Gun: A firearm designed or altered to appear as another object, concealing its true nature.

Additional Considerations:

Location-Based Exception: Possession of a loaded firearm within one’s home or place of business is generally exempt from this charge unless other specific conditions apply. This exception acknowledges an individual’s right to possess a loaded firearm for self-defense in these locations.
Operability: The firearm must be operable, meaning it is capable of discharging ammunition. However, the defendant’s knowledge of the firearm’s operability is not a requisite for possession charges.

Careful consideration of these elements is essential for evaluating potential defenses and the applicability of the statute to specific circumstances. Each element must be proven beyond a reasonable doubt by the prosecution to secure a conviction under NYPL § 265.03.

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Example Based on Case Law

In People v. Garcia, the defendant, George Garcia, was convicted under New York Penal Law § 265.03(1)(b) and (3) for possessing a loaded firearm with the intent to use it unlawfully against another person. Garcia was involved in an altercation outside a nightclub, during which he retrieved a loaded gun from his car and approached individuals he believed were threatening him. He was apprehended by police while holding the loaded firearm. Despite holding a firearm license from Utah, his possession of the loaded firearm in New York City, coupled with his intent to use it unlawfully, led to his conviction under the statute.

Possible Legal Defenses

Individuals charged with Criminal Possession of a Weapon in the Second Degree may consider several legal defenses, including:

Unlawful Search and Seizure: Challenging the legality of the search that led to the discovery of the weapon, potentially resulting in suppression of the evidence if the search violated Fourth Amendment rights.
Temporary and Lawful Possession: Claiming that the possession was temporary and with the intent to surrender the weapon to authorities.
Possession in Home or Place of Business: Asserting that the loaded firearm was possessed within the defendant’s home or place of business, which may exempt them from certain charges under this statute.

Each defense strategy depends on the specific facts and evidence of the case, emphasizing the importance of consulting with an experienced attorney.

Legal Defense	Description
Unlawful Search & Seizure	Challenge the search’s legality; evidence may be suppressed if Fourth Amendment rights were violated.
Temporary & Lawful Possession	Argue that possession was brief with the intent to surrender the weapon.
Possession in Home/Business	Assert the weapon was kept in a private space, potentially exempting the defendant from some charges.

Penalties

Criminal possession of a weapon in the second degree is classified as a class C felony in New York. Upon conviction, the penalties can include:

Incarceration: A determinate prison sentence ranging from a minimum of 3.5 years to a maximum of 15 years.
Fines: Up to $5,000.
Post-Release Supervision: A period of supervision following release from prison, typically lasting between 2.5 to 5 years.

The exact penalties can vary based on factors such as the defendant’s criminal history, the nature of the weapon, and the context of the possession. Legal counsel can provide guidance on mitigating potential penalties and addressing the judicial process.

NYPL § 265.03 Criminal Possession of a Weapon in the Second Degree

A person is guilty of criminal possession of a weapon in the second degree when:

With intent to use the same unlawfully against another, such person:
- possesses a machine-gun; or
- possesses a loaded firearm; or
- possesses a disguised gun; or
Such person possesses five or more firearms; or
Such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person’s home or place of business.

Criminal possession of a weapon in the second degree is a class C felony.

Working with a Seasoned Manhattan Criminal Defense Attorney From Lebedin Kofman LLP

Understanding the implications of a charge under New York Penal Law § 265.03 for criminal possession of a weapon in the second degree is essential, as it carries serious legal and personal consequences. This offense involves allegations such as possessing a loaded firearm with unlawful intent or having multiple firearms, which can result in significant prison time and fines if convicted. A skilled Manhattan criminal defense attorney from Lebedin Kofman LLP can provide the representation needed to protect your rights, thoroughly analyze your case, and build a strong defense strategy.

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