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Aggravated Criminal Possession of a Weapon

A charge of criminal possession of a weapon may be elevated to a more serious charge of aggravated criminal possession of a weapon if a person commits any of a long list of violent felony offenses or drug trafficking crimes while possessing a loaded weapon.

Aggravated Criminal Possession of a Weapon is a Class C violent felony offense under New York Penal Law, Part 3, Title P, Article 265.17. An arrest for this charge may occur when a person knowingly possesses any loaded firearm and also commits a specific violent felony offense or drug trafficking felony arising out of the same criminal “transaction,” unless the possession of the weapon took place in the person’s home or place of business.

Penalties for a conviction of aggravated criminal possession of a weapon include up to 15 years in prison and a fine of up to $5,000, as well as the seizure and destruction of the weapon.

Attorney for Aggravated Criminal Possession of a Weapon in Manhattan

If you were arrested for aggravated criminal possession of a weapon in Manhattan or any of the five boroughs of New York City, then contact an experienced criminal defense attorney. A qualified attorney will be able to explain the charge and defenses that apply.

At Greco Neyland, PC, we represent people arrested on criminal weapon charges in New York and we take the time to thoroughly investigate each case. With Greco Neyland, PC as your advocate, you will have former prosecutors fighting on your behalf, so we know how the process works. We represent clients in Manhattan (New York County), Brooklyn (Kings County), The Bronx, and the other boroughs of New York City. Call us today at (212) 951-1300 to schedule a free consultation.


Information about Aggravated Criminal Possession of a Weapon in New York City


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Types of Aggravated Criminal Possession of a Weapon Charges

A license is required in New York in order to possess a gun legally. New York City’s gun laws exist in addition to New York State’s gun laws and the city laws are more restrictive than the state laws, requiring registration with the city as well as the state.

A conviction for a previous crime may prohibit a convicted person from possessing a gun. Some people who were never convicted of a crime may also be legally barred from possessing a gun due to certain mental or physical conditions.

New York Penal Law, Part 3, Title P, Article 265.19 states that a person is guilty of Aggravated Criminal Possession of a Weapon when he or she:

  • Commits the crime of criminal possession of a weapon in the second degree (knowingly possesses a loaded firearm) under N.Y. P.L. § 265.03(3); and
  • Commits any violent felony offense under N.Y. P.L. § 70.02(1) or a drug trafficking felony under N.Y. P.L. § 10.00(21) arising out of the same criminal transaction.

There is an exception to the law in that “such possession shall not constitute a violation of this law if such possession takes place in such person’s home or place of business.”

In addition, previous cases have established that a gun must be “operable” in order to obtain a conviction.


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Definitions of Terms Related to Aggravated Criminal Possession of a Weapon

Several key terms in the law are legally defined in the statutes, including knowingly, possess, firearm, loaded firearm, Class C violent felony offense, drug trafficking felony and operable.

Under N.Y. P.L. Part 1, Title B, Article 15.05(2), a person “knowingly” possesses a firearm when that person is “aware” that he or she is in possession of a firearm.

Under the law, “possess” means to have physical possession or otherwise to exercise dominion or control over tangible property (N.Y. P.L. Part 1, Title A, Article 10.00(8)).

Possession may be “actual” or “constructive.” Actual possession occurs when the police discover a weapon on a person or his or her belongings and no one else has equal access to it. Constructive possession occurs when more than one person has access to a weapon, such as a weapon in a drawer or glove box of a vehicle when more than one person has access to it.

A “firearm” is defined in N.Y. P.L. § 265.00(3) as “any pistol or revolver.” Rifles and shotguns are also considered to be “firearms” under N.Y. P.L. § 265.17, but an “antique firearm” is not. (See N.Y. P.L. § 265.00 for definitions of other weapons.)

A “loaded firearm” means “any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm.” (N.Y. P.L. § 265.00(15)). Note that the definition of “loaded firearm” includes the potential to be loaded if ammunition is possessed, so a weapon does not need to be actually loaded to be legally loaded.

In addition, there is no requirement that the defendant knew the firearm was loaded at the time of possession. (See People v Broomfield, 275 AD2d 885 [4th Dept 2000]; People v Smith, 270 AD2d 719 [3d Dept 2000]; People v Toribio, 216 AD2d 189 [1st Dept 1995]).

According to N.Y. P.L. Part 2, Title E, Article 70.02(1)(b), a Class C “violent felony offense” includes (with statute cited):

  • An attempt to commit any of the (more serious) Class B felonies listed in N.Y. P.L. § 70.02(1)(a)
  • Aggravated Criminally Negligent Homicide (§ 125.11)
  • Aggravated Manslaughter in the second degree § 125.21)
  • Aggravated Sexual Abuse in the second degree (§ 130.67)
  • Assault on a Peace Officer, Police Officer, Fireman or Emergency Medical Services Professional (§ 120.08)
  • Assault on a Judge (§ 120.09)
  • Gang Assault in the second degree (§ 120.06)
  • Strangulation in the first degree (§ 121.13)
  • Burglary in the second degree (§ 140.25)
  • Robbery in the second degree (§ 160.10)
  • Criminal Possession of a Weapon in the second degree (§ 265.03)
  • Criminal Use of a Firearm in the second degree (§ 265.08)
  • Criminal Sale of a Firearm in the second degree (§ 265.12)
  • Criminal Sale of a Firearm with the aid of a minor (§ 265.14)
  • Aggravated Criminal Possession of a Weapon (§ 265.19)
  • Soliciting or Providing Support for an Act of Terrorism in the first degree (§ 490.15)
  • Hindering Prosecution of Terrorism in the second degree (§ 490.30)
  • Criminal Possession of a Chemical Weapon or Biological Weapon in the third degree (§ 490.37)

According to N.Y. Penal Law Part 1, Title A, Article 10.00(21), a “drug trafficking felony” means any of the following offenses defined in N.Y. P.L. § 220.28, including (with statute cited):

  • Criminal Sale of a Controlled Substance in the fourth degree, (§ 220.34)
  • Criminal Sale of a Controlled Substance in the third degree (§ 220.39)
  • Criminal Sale of a Controlled Substance in the second degree (§ 220.41)
  • Criminal Sale of a Controlled Substance in the first degree (§ 220.43)
  • Criminal Sale of a Controlled Substance in or near School Grounds ( 220.44)
  • Unlawful Manufacture of Methamphetamine in the second degree (§ 220.74)
  • Unlawful Manufacture of Methamphetamine in the first degree (§ 220.75)
  • Operating as a Major Trafficker (§ 220.77)

A firearm does not need to be loaded for a person to be charged under this law, but the firearm must be “operable.” To be operable, a firearm must be “capable of discharging ammunition,” although previous court cases have established that the possessor of a gun does not need to know if the gun was operable in order to be charged.


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Elements of Aggravated Criminal Possession of a Weapon

In order for a defendant to be found guilty of a charge of Aggravated Criminal Possession of a Weapon under N.Y. P.L. § 265.19, a judge or jury must find that a person, beyond a reasonable doubt:

  • Possessed a firearm on or about a certain date in a specific county;
  • Knowingly possessed a firearm on or about a certain date in a specific county;
  • The firearm was loaded and operable;
  • The firearm was possessed in a place that was not the defendant’s home or place of business; and
  • The defendant also committed (a specific violent felony offense or specific drug trafficking offense) arising out of the same criminal transaction.

N.Y. P.L. §265.19 applies to offenses committed on or after March 16, 2013.


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Penalties for Aggravated Criminal Possession of a Weapon

Aggravated Criminal Possession of a Weapon is a Class C Violent Felony Offense in New York. A Class D violent felony is punishable upon conviction by:

  • Up to 15 years in prison, and/or
  • A fine of up to $5,000

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Resources Related to Aggravated Criminal Possession of a Weapon

New York Penal Law, Part 3, Title P, Article 265.19 — Read the New York State law pertaining to aggravated criminal possession of a weapon.

Jury Instructions for Aggravated Criminal Possession of a Weapon — Visit the website of the New York State Unified Court System to find the standard criminal jury instructions (CJI) for Penal Law Offenses, including aggravated criminal possession of a weapon on or after March 16, 2013.


Attorney for Aggravated Criminal Possession of a Weapon in New York City

If you were arrested in New York City for Aggravated Criminal Possession of a Weapon under N.Y. P.L. § 265.19, then contact a criminal defense attorney.

The skilled criminal defense lawyers at Greco Neyland, PC are experienced in defending weapons charges. We work with you at each stage of the case. 

We serve clients throughout the five boroughs of New York City, including Manhattan, Brooklyn, and the Bronx. Contact the dedicated lawyers at Greco Neyland, PC today by calling (212) 951-1300 to schedule a free consultation about your felony charges.

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