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New York Criminal Possession of a Weapon in the Third Degree (NY Penal Law 265.02)

Criminal Possession of a Weapon in the Third Degree is categorized as a Class D felony, a violent felony, in the state of New York. A class D felony comes with a minimum prison sentence of two years and a maximum sentence of seven years. Criminal Possession of a Weapon in the Third Degree remains a very complicated charge since there are a variety of factors that can lead to being charged under this statute.

Connection to a Fourth-Degree Offense

Criminal possession of a weapon in the fourth degree is a Class A misdemeanor. Violations of this law, when combined with other factors, lead to an increase of the charges to a third-degree offense.

Under criminal possession of a weapon in the fourth degree, numerous different weapons are clearly categorized. Firearms of all variety including black powder cartridge and muzzleloader rifles/pistols fall under a fourth-degree offense. Stun guns, dart pistols, and imitation pistols are also listed in the statute along with various bladed weapons such as machetes, cane swords, switchblades, and more. Impact weapons including blackjacks, metal knuckles, nunchaku, and bludgeon instruments remain illegal to possess. Projectile weapons – wrist-brace slingshots, shuriken, and the like – lack legality as well. Numerous other weapons not listed are also illegal to possess.

The statute also notes lack of United States citizenship, previous convictions for a felony, possession of barred ammunition could create the basis for charges. The fourth-degree possession statute encompasses many violations.

Increasing the Charge Based on Circumstances

A charge of criminal possession of a weapon in the fourth degree is a serious charge to be sure, but the penalties for third-degree possession are much more severe. A person who has committed what would “normally” be a fourth-degree offense could be increased to a third degree one if the suspect has been convicted of any crime. The statute clearly states “any crime,” which means even a non-violent misdemeanor affects the charges. In some instances, the only difference between a fourth or third-degree charge would be the presence or absence of a previous conviction.

A third-degree charge could be levied against a person regardless of any previous convictions. Non-violent crimes may provide the basis for an increase from fourth to the third degree. The specifics of how circumstances of automatic third-degree weapon possession charges are clearly spelled out in the criminal code.

The firearm violations in this statute expand to include:

Silencers and Alterations for Concealment

Possession of a firearm silencer automatically leads to a third-degree possession charge. Silencers are designed to lower and suppress the sound of a discharged firearm. The law makes no distinction between professionally made and homemade silencers. Possession of a firearm silencer remains a crime.

Defacing or altering a weapon for the purpose of greater concealment brings charges to the third-degree level. Cutting off the barrel of a shotgun or rifle – a sawed-off shotgun – reflects a common example. Cutting the stock off a rifle/shotgun or both the barrel and stock might fall under this delineation. Conceivable, sawing the seven-inch barrel of a revolver down to two-inches violates this statute.

Possession of a Loaded Firearm

Carrying an unloaded firearm is a crime. Carrying a loaded firearm raises the charges to the third-degree level. The law does not mention the weapon must be concealed. Certain states’ statutes allow for legal open carry of firearms. Restrictions may apply in certain jurisdictions. Open carry of a loaded shotgun while hunting obviously is not a crime. The open carry of a shotgun on a city street surely would be.

Defacing Firearm Serial Numbers

To deface, file, or otherwise attempt to remove or render unreadable the serial numbers or any identifying component on a firearm automatically moves a possession charge up to the third degree. Law enforcement uses serial numbers to trace firearms to their lawful owners and sellers when used in a crime or stolen. Removing serial numbers can be charged as a felony on both the state and federal level. Anyone in possession of such a marred firearm regardless of age or type of weapon would be in serious legal jeopardy.

Unique Firearm Possession Circumstances

A person who possesses three or more firearms would be charged with possession of the third degree. So would a person who possesses a firearm and has been convicted of a felony or a class A misdemeanor within five years before the commission of the offense. Exceptions to this statute would be when the possession occurs in the person’s home or place of business.

Other unique rules to this statute reference possession of an assault weapon, a disguised gun, or a large-capacity feeding device. Ignorance of the law does not absolve anyone from these statutes. A person who lawfully purchases a weapon or feeding device legal in one state but defined as illegal in New York might find him/herself in serious after moving to New York and importing the weapon/feeding device.

Explosives and Incendiary Devices

The common images that come to mind when mentioning possession of a weapon would be a firearm or knife. Explosives and incendiary devices also fall under this statute. Bombs and bombshells – shells designed to launch projectile bombs – are deadly weapons and against the law. The false assumption may be that it is only illegal to possess bombs or other explosives for the purpose of committing a malicious crime. The possession of these devices for any reason would be a crime.

For example, if someone were to make a home movie and intended to explode a homemade bomb for “special effects,” this would be an extremely dangerous stunt to attempt. Possessing such an explosive would be a crime. Again, the intent remains irrelevant to the charges since the charge focuses on possession.

by Leonard on Spodek Law Group
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